Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company v. Adams

• Decision Date: 01 February 1900
• Docket Number: 2,865
• Citation: 56 N.E. 101,25 Ind.App. 164
• Parties: THE PITTSBURGH, CINCINNATI, CHICAGO AND ST. LOUIS RAILWAY COMPANY v. ADAMS, BY HIS NEXT FRIEND
• Court: Indiana Appellate Court

56 N.E. 101

25 Ind.App. 164

THE PITTSBURGH, CINCINNATI, CHICAGO AND ST. LOUIS RAILWAY COMPANY v. ADAMS, BY HIS NEXT FRIEND

No. 2,865

Court of Appeals of Indiana

February 1, 1900

Rehearing denied June 22, 1900.

From the Madison Superior Court.

Reversed.

John L Rupe, for appellant.

W. A Brown, for appellee.

OPINION

BLACK, J.

A demurrer to the complaint of the appellee against the appellant for want of sufficient facts was overruled in the Henry Circuit Court, where this cause was commenced. An answer in denial was filed, and the venue was then changed to the court below, where the cause was tried by jury, and a general verdict was returned in favor of the appellee for $ 3,000, and judgment was rendered accordingly.

In the complaint there were allegations describing at length the location of the appellant's railway tracks and the surroundings, in the town of New Castle. It was shown that a street in said town known as Broad street, extending east and west, was crossed by the main track of the appellant's railway running in a northwesterly direction; that at a short distance east of the crossing and north of said main track was the freight depot with an elevated platform, along the north side of a side-track which extended from a point some distance to the eastward and was parallel with the main track and between it and said depot; that another side-track of the appellant lay some distance north of said first mentioned side-track and nearly parallel with it, and extended from the eastward to a point near the east end of said depot. Said side-tracks were used by the appellant and the public generally in reviving and delivering freight. From said Broad street and the west side of the main track at said crossing there was constructed and for many years there had been maintained a roadway, extending from the street southeastward along the south side of said main track several hundred feet to a point east of said depot and south of the main track, where the appellant had constructed and for many years had maintained, and still maintained, a safely constructed crossing for wagons and teams across the main track and the first mentioned side-track, affording a way of ingress to and egress from the cars standing upon said tracks, for the purpose of delivering and receiving freight, and along this roadway and crossing was the customary way of going to and from said side-tracks to deliver and receive freight, and the appellant constructed and maintained the roadway and crossing for such purpose alone and for the accommodation of the public in transacting freight business with the appellant. It was alleged that on, etc., the appellee was a young man about eighteen years of age, and was in the employ of his brother, named, a dealer in poultry, eggs, and produce in said town; that in the course of his duties as such employe the appellee was required to deliver and receive freight to and from the appellant at said side-tracks by means of drays; that a short time prior to the date mentioned, a large number of egg crates, used in packing and shipping eggs, had been shipped to appellee's brother, which the appellant had transported in a box car, and appellant had placed said car upon said side-track farthest north, and had notified appellee's said brother of the arrival thereof and that they were delivered to him for his use; that appellee, in the course of his duty as such employe, took a dray to which was hitched one horse and drove to said car for the purpose of draying a portion of the crates to his said brother's place of business; that the dray was an ordinary platform dray, safely and properly constructed, and the horse was a docile, gentle horse used and inured to cars and moving trains, and had been used by appellee's said brother continuously in and about the cars in receiving and delivering freight for more than a year prior to said time; that when the appellee reached the crossing of said street and railroad, proceeding from the west in the regular course of travel from his said brother's place of business to the situation of said freight car, a freight train of the appellant was standing on the main track headed to the northwest; that he turned and drove his horse and dray from said street to the southeast on said traveled way along the south side of said main track and along the south side of said freight train to the point where said crossing southeast of the freight depot was constructed, and he there drove across to the north side of said first mentioned side-track and then turned eastward and drove from 200 to 250 feet further to said car containing the crates, which he loaded in a usual, proper, and careful manner, described; that he was engaged in loading the crates from ten to fifteen minutes; that when he so crossed the railway going to said car, said train had been cut, leaving a caboose standing from 300 to 500 feet east of said crossing and the rear end of the other part of the train standing within about ten feet of said crossing; that the freight train was a long train, and the engine attached to it was from 600 to 800 feet northwest of the place where the appellee had so crossed the tracks. The pleading described obstructions which hid from his view the caboose and all of the freight train except about fifteen or twenty feet of the rear end of the hindmost car of the train. It was alleged that as soon as he had loaded his dray he drove along the south side of the northern side-track until he came to a point where one so driving would naturally turn the horse to the left, heading in a southwesterly direction across said tracks, until he reached a point about fifty feet from the railway track, where he stopped his horse and dray and listened for the purpose of ascertaining whether or not the train was about to move; that at this time one of the employes of the appellant in charge of said train was standing in the main track upon said crossing within a few feet of the rear end of said freight car and train. It was alleged that said employe knew, and had good reason to know, that said train was then about to back across said crossing for the purpose of coupling on to said caboose; that knowing and having good reason to know that fact, said employe, knowing the appellee was approaching said track and had stopped as aforesaid, negligently and carelessly wholly failed to warn him or to give him any notice or indication whatever that said train was about to move over said crossing as aforesaid, and, on the contrary, negligently and carelessly motioned the appellee with his hand to drive across said crossing; that upon his giving said motion, the appellee, believing that said train was not about to start or move, and relying upon said signal, started in a slow walk to drive across said track, and, just as his horse's head was approaching the crossing of the main track, the appellant's employe in charge of said train negligently and carelessly, without theretofore or at any time sounding any whistle or ringing the bell, suddenly started said train back to and over said crossing; that the starting of the train and the bumping of the cars created a very considerable noise and confusion; and the moment that the appellee saw the train was moving, or became aware thereof in any way, he suddenly pulled his horse back by means of the lines, and the horse, becoming frightened at the movement of the train and the noise thereof, turned to the right and to the northwest, in the direction of the switch track, and momentarily the hind end of the train struck the dray with great force, overturning and throwing it against the platform of the freight house upon the north side of said switch track, and throwing the appellee forward upon the ground upon and near the north rail of the main track; that in said collision the appellant's cars in said train mashed and maimed his right arm from the hand to the elbow, in such manner that it became and was necessary to amputate his right arm above the elbow; that said injury was caused wholly and entirely by the carelessness and negligence of the appellant's employes in charge of said train as aforesaid, and without any fault, negligence, or want of care upon the part of the appellee in any particular whatever. The additional averments related to the damages sustained by the appellee.

It is suggested, on behalf of the appellant, against the complaint that no facts are pleaded from which the court may know that the employe who stood behind the train was acting within the line of his duty, or that he had any power or authority to bind the appellant by his act.

It is not shown in what respect there was negligence in backing the train. The appellant had a right to back the train upon its track for the purpose of coupling it with the caboose. The mere act of backing the train in the prosecution of its business, with the incidental noise, was not wrongful, and was not in itself a violation of any duty which the appellant owed to the appellee.

It is alleged that the appellant's employe in charge of the train negligently and carelessly, without sounding the whistle or ringing the bell, suddenly started the train, but it is not stated that the failure to sound the whistle or to ring the bell was negligent, or that there was any negligent failure of the appellant to give warning of the movement of the train. It is not stated that the train was negligently run against or upon the appellee or his dray. It does not appear that the employe who started the train had any notice or knowledge of the appellee's near approach and hazardous situation, or that his alleged negligence in starting the train consisted in his failure to act prudently in view of knowledge or notice of any facts which...