Pittsburgh, Cincinnati, Chicago & St. Louis Railway Co. v. Seivers
| Decision Date | 04 June 1903 |
| Docket Number | 20,020 |
| Citation | 67 N.E. 680,162 Ind. 234 |
| Court | Indiana Supreme Court |
| Parties | Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company v. Seivers, Administratrix |
Rehearing Denied February 26, 1904, Reported at: 162 Ind. 234 at 246.
From Cass Circuit Court; D. H. Chase, Judge.
Action by Dora M. Seivers, administratrix of the estate of Deleno Gaby, deceased, against the Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company. From a judgment for plaintiff, defendant appeals. Transferred from Appellate Court, under § 1337u Burns 1901.
Reversed.
G. E Ross, for appellant.
M Winfield, M. B. Lairy and M. F. Mahoney, for appellee.
Action by appellee Dora M. Seivers, administratrix of the estate of Deleno Gaby, deceased, to recover damages of appellant for the alleged wrongful death of the decedent. Trial by jury, and finding in her favor awarding damages in the sum of $ 2,000. Over appellant's motion for a new trial judgment was rendered on the verdict.
The errors assigned are predicated upon overruling the demurrer to each paragraph of the complaint and upon the decision of the court in denying the motion for a new trial.
The complaint is in two paragraphs. The first charges that appellant is a railroad corporation, and on September 25, 1900, was operating a railroad between Logansport, Indiana, and Chicago, Illinois, and from Logansport east and southeast. The pleading alleges in respect to the death of appellee's decedent as follows: "That along its line between Logansport and the State line between Illinois and Indiana is a station called 'Kenneth,' situated in Cass county, Indiana; that near said station are large stone-quarries, operated by a company unknown to this plaintiff; that in the operation of said stone-quarries a large number of men are employed, to wit, four or five hundred; that there are at said quarries large stone-crushing machines propelled by steam, which machines rest upon timbers placed in the ground; that there are also three blacksmith shops, tool-houses, and other buildings belonging to the quarry company; that from the main line of the defendant are three side-tracks or Y's, which run along by the quarry, and between the crushing machines and said blacksmith shop and other buildings, all of which buildings, crushing machines, and side-tracks are on the ground of the quarry company, and not upon the ground of the defendant; that said tracks are used by the defendant to switch cars, known as 'gondola cars,' specially adapted to hauling stone along and in front of the crushing machines for the purpose of being loaded; that through the center of the crushing machine is a path for the employes of the quarry company, by which they are enabled to cross the side-tracks to the buildings on the other side on business for the quarry company; that there is no other way for them to cross; that the several employes must necessarily cross and recross said side-tracks numerous times every day while working for the quarry company; that the points where the path touches the north side-track is so hidden by timber and buildings that it is impossible to see up and down the said track until right upon the track, all of which facts were well known to the defendant on the said 25th day of September, 1900, and for a long time before; that the defendant kept an engine at said station in charge of an engineer, known as a switch-engine, with which said gondola cars were taken from the main track and backed upon side-tracks, and placed so as to be loaded with stone, and then taken back by defendant to its main track, and shipped to various points in Indiana and other states; that large numbers of said cars were thus backed up and loaded and shipped every day, and as the same, when being backed up and shipped, required constant care upon the part of the employes of the defendant to avoid injury to said employes of the quarry company, it was the custom of the company to back said cars slowly, not to exceed three or four miles per hour, and to have a brakeman stationed at the rear end, or properly at the front end, of the backing train, to warn employes, so that they might avoid all injury, all of which facts were well known to all said employes, including the plaintiff's decedent; that on the 25th day of September, 1900, as the plaintiff's decedent, Deleno Gaby, employed by said quarry company, and while on business for said company, came down said path to cross said side-tracks going south, and as he stepped upon said north track, was struck by a gondola car being backed up from the main line, knocked down and instantly killed by said moving car, owned, controlled, and handled by the defendant; that said decedent was killed by and through the negligence of the defendant and its employes, and not otherwise, in this, to wit: that there were several cars at the time being backed by said switch-engine; that no brakeman or other person was stationed on the rear end, nor at any other place, to give warning of the approaching cars; that said cars were backed in a careless and reckless manner, to wit, they were backed at a speed of ten or twelve miles per hour, all contrary to the custom of the company, along and at the place where the decedent was killed; that had the cars been backed in the usual manner, with the brakeman to give warning, there would have been no danger to the decedent and the other employes, but the deceased was killed, as aforesaid, by the said carelessness and negligence upon the part of the defendant and its employes." The second paragraph avers substantially the same facts as the first, except that they are more specifically and fully set out.
Counsel for appellant with much earnestness insists that both paragraphs are insufficient, for the reason that under the facts therein alleged it is not disclosed that appellant owed any duty to appellee's decedent which in any manner it had failed to discharge. Various reasons are also advanced by counsel for appellant to the effect that if the sufficiency of the complaint be conceded, the evidence is not sufficient to sustain the judgment below. Especially is it urged that the undisputed evidence introduced on the part of appellee establishes that her decedent at the time of the accident was guilty of contributory negligence which necessarily precludes a recovery, and for this reason alone it is contended that the trial court should, as requested, have directed the jury to return a verdict for appellant.
Conceding, without deciding, that the complaint is sufficient, we pass to a consideration of the evidence as exhibited by the record in order to determine if the judgment of the lower court thereon can be upheld.
The evidence introduced by appellee establishes that Gaby, the decedent, was an employe of the quarry company at and prior to the time of the fatal accident. He was about sixty years old, had good eyesight and hearing, and was in the full possession of all of his senses. On the line of appellant's railroad at a station called Kenneth, about three miles west of Logansport, in Cass county, large stone-quarries are operated by a company, wherein stone is quarried, put into large crushers, and, when crushed, is loaded onto cars and shipped to various markets. Leading from the main track of appellant is a side-track, and from it are two sidings. These sidings or switches on the premises of the quarry company are about three hundred feet from the main line of appellant's road. The entire three sidings being located down past the crushing machines, which are situated on the premises of the quarry company. The most northerly track of these three sidings is No. 1, the center being known as No. 8, and the south track as No. 6. Under a contract with the quarry company appellant located these sidings upon the premises of the company for the purpose of hauling therefrom the crushed stone which the quarry company shipped away to its various customers. At the aforesaid station appellant had a switching crew, for the purpose of switching and placing cars from the stone-quarries. For the benefit and convenience of the quarry company, the switching and setting of these cars, previous to the time of the accident which occurred on the 25th day of September, 1900, was done as much as possible at the noon hour, being from 11:30 a. m. to 12:30 p. m., and in the evening along about 5 o'clock, so as not to interfere with the operation of the quarries. It appears, however, that cars were set at other times during the day; for unless there were cars set on the tracks the quarries could not run, as it was necessary to load the crushed stone onto the cars in order that work in the quarries would not be delayed. It is disclosed that the crushers are located on upright timbers, these latter being from twelve to fourteen inches square and from twelve to fifteen feet apart; and on the north side of track No. 1, and to within three feet and seven inches of the north rail, the crushers are elevated on these timbers several feet above the level of the tracks, and these timbers obscured the view of the tracks both east and west, but, as hereinafter stated, a person within three and one-half or four feet of track No. 1 would be afforded an unobstructed view of the track in both directions. Crusher No. 6 is the first to the east, then west of it is No. 8. Between these two latter crushers, and about fifteen to twenty feet north of the north rail of track ...
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Pittsburgh, C., C. & St. L. Ry. Co. v. Seivers
... ... Seivers, administratrix, against the Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company. Judgment for plaintiff, and ... ...