Appeal from Circuit Court, Bartholomew County; M. Hacker, Judge.
LAIRY, J.
The appellant filed a complaint in the court below in two paragraphs. He afterwards dismissed the first paragraph, and a demurrer for want of facts sufficient to constitute a cause of action was sustained to the second paragraph. The appellant refused to amend or plead further, and judgment was rendered against him. From this judgment, he appeals to this court, and assigns as error the ruling of the trial court in sustaining the demurrer to the second paragraph of his complaint.
This paragraph of complaint is as follows: “The plaintiff, Walter C. Richey, for second and further paragraph of amended complaint, and by way of further amended cause of action against the Cleveland, Cincinnati, Chicago & St. Louis Railway Company, a corporation, says: That the defendant is now, and has been continuously for more than 10 years last past, a corporation owning and operating a line of steam railroad and engaged in the business of a common carrier of passengers and freight, and which line of railroad passes through the county of Shelby and state of Indiana. On the 27th day of March, A. D. 1905, the plaintiff was an employé in the service of the defendant, doing common labor as a section hand in repairing and maintaining the railroad tracks of the defendant and doing other varied service on said section, which was and is about three miles long, extending from the town of Waldron in said county, in a northwesterly direction, to what is known as ‘Wheeler creek,’ over which the defendant maintained a bridge called ‘Wheeler Bridge,’ which was known as the west end of said section, which is located west of the village of Prescott upon the defendant's line of railroad, which section, with the hand car, tools, implements, and the employés, were under the control, supervision, and subject to the orders of an employé of said defendant known as a ‘section foreman,’ and at said time this plaintiff and other section hands laboring for the defendant were under the control and subject to the orders of said section foreman who were engaged in the same common service and in the same department of service of said defendant under the orders of said section foreman, who at said time was a coemployé and fellow servant with this plaintiff and the other employés on said section. That said section foreman during all of said time in performing the service of said corporation was then and there acting and duly authorized so to do in the place of, and performing the duties of, said corporation in that behalf as its duly authorized agent. That upon said day, and for a long time previous thereto, this plaintiff was under the absolute control and subject to the orders and direction of said section foreman in performing his work and labor upon said section. Upon the day aforesaid, and a long time previous thereto, the defendant owned a machine commonly called and known as a hand car, which was then, and for a long time before said time had been, in the possession and under the exclusive control of said section foreman, and which was used by the defendant under the supervision and control of said section foreman for said defendant, for the purpose of transporting said section foreman and said section hands under his control and subject to his order along the line of said section for the purpose of performing the duties of said corporation, and also for the purpose of carrying and transporting tools, implements, lifting jacks, cross-ties, railroad iron, spikes, dirt, iron rails, gravel, and other material in repairing and maintaining the roadbed of said corporation and for performing other duties pertaining thereto. Said hand car was a large and heavy machine with iron wheels that was propelled by an appliance attached thereto that was operated by hand, and propelled by employés of said company with handle bars. That said machine and car was also equipped with a brake for checking and stopping the speed of said car. That upon said day the plaintiff, with other sectionmen, who were employés of said defendant, were unloading cross-ties and cars of defendant at the town of Waldron, on said section, when said section foreman gave this plaintiff and the other employés working on said section a specific and special order to desist from said work and load upon said hand car their shovels, picks, lifting jack, and other tools belonging to the defendant, and specifically ordered and directed that this plaintiff and said employés working upon said section (which order and direction he was authorized to give) to get upon said hand car and proceed with him thereon to the west end of said section at said Wheeler Creek Bridge, to make repairs upon said roadbed of said defendant by surfacing the same. That while traveling and proceeding under said order and direction of said section foreman who had charge of and management of the brakes, and the management of said car by virtue of the authority vested in him by the defendant so to do, and while traveling upon said hand car subject to said orders of said section foreman to perform the duties required of them, the said hand car, while running at a high rate of speed, to wit, at the rate of 12 miles per hour, over said defendant's road, and said car was being propelled as aforesaid by this plaintiff, and the said employés under the order and direction of said section foreman who was then present upon said car ordering and directing its movement, and who was the only person authorized to operate or apply the brakes on said hand car, and who was the only person who had any authority to control and direct the movements and operations of said car, which was then heavily loaded with implements, tools, and said section foreman, and other employés on said section, and, while so running said hand car at a high rate of speed on a downgrade, the said section foreman carelessly and negligently and with great force, without any notice to this plaintiff, suddenly applied the brakes to said car when there was no necessity therefor at a point more than one mile from their destination, unexpected to this plaintiff and the other employés of said car, whereby said car was quickly, suddenly, and violently checked and reduced from a speed of 12 miles per hour to a speed of 3 miles per hour almost instantly by the said section foreman negligently and carelessly jumping upon and throwing his entire weight upon said brakes, he, the said section foreman, then and there being a large and heavy man, by reason of which negligent conduct this plaintiff was thrown forward off of said car to the ground upon said railway bed, and his body coming in violent contact with the ground, his head striking one of the iron rails on said track, and the car passing over his left leg, foot, and ankle, and crushing the bones of the leg, foot, and ankle, and lacerated and tore the tendons, ligaments, muscles, and blood vessels of said leg, foot, and ankle, and, by reason of said injuries and negligence of said section foreman and this defendant, he was cut, bruised, wounded, and injured about the head, back, arms, and other parts of his body, so that he is permanently injured, and will be a cripple for life. At the time aforesaid when he was so injured, he was obeying and comforming to the special and direct orders and directions of said section foreman, who then and there had competent authority in said behalf from said defendant to order and direct him, and said section foreman, at the said time, was his superior in authority upon said section, and said section foreman, this plaintiff, and the other employés upon said section at said time were engaged in the same common service in the said department of the defendant as fellow servants, performing the duties and labors of said corporation. This plaintiff further avers: That at the time he received said injuries, and at the time of the negligent acts of said section foreman and defendant, he, the plaintiff, was an employé in the service of said defendant, and, at the time of receiving said injury and during the negligent conduct of said section foreman and at all of said times, the plaintiff exercised due care and diligence to prevent said injury, and during all of said time he was free from fault or negligence contributing in any degree to his injury. That previous to said time he was physically strong and able to perform any kind of labor, and to earn $36 per month, but since said time he has not been able to perform common labor, and will not be able again to do so. That he has suffered great pain and anguish, and will continue to suffer greatly from said injuries as long as he shall live. That he has incurred a liability for, and has paid for, medicine, nursing, physicians' services, care and attention to be healed, the sum of $100. Wherefore he says that he is damaged in the sum of $10,000, for which he demands judgment and for all other proper relief.”
The point is made by appellee that the brief of appellant raises no question for decision by reason of the fact that it does not comply with rule 22 of this court in two particulars. It is true that appellant does not refer to the page and lines of the transcript where the second paragraph of complaint may be found at the place in his brief where the complaint is set out under the heading entitled, “Statement of the Record”; but immediately preceding this heading, and on the same page of the brief, under the head of “Errors Relied on for Reversal,” it is stated that the...
