Richey v. Cleveland, Cincinnati, Chicago And St. Louis Railway Company

• Decision Date: 15 February 1911
• Docket Number: 7,428
• Parties: RICHEY v. CLEVELAND, CINCINNATI, CHICAGO AND ST. LOUIS RAILWAY COMPANY
• Court: Indiana Appellate Court

93 N.E. 1022

47 Ind.App. 123

RICHEY v. CLEVELAND, CINCINNATI, CHICAGO AND ST. LOUIS RAILWAY COMPANY

No. 7,428

Court of Appeals of Indiana

February 15, 1911

From Bartholomew Circuit Court; Marshall Hacker, Judge.

Action by Walter C. Richey against the Cleveland, Cincinnati Chicago and St. Louis Railway Company. From a judgment for defendant, plaintiff appeals.

Transferred to Supreme Court. (For final decision, see 176 Ind. .).

Hord & Adams, for appellant.

Carter & Morrison, for appellee.

OPINION

LAIRY, P. J.

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. 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 a second and further paragraph of amended complaint, and by way of further amended cause of action against the Cleveland, Cincinnati, Chicago and St. Louis Railway Company, a corporation, says: That defendant is now and has been continuously for more than ten 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, which line of railroad passes through the county of Shelby and State of Indiana; that on March 27, 1905, plaintiff was an employe in the service of defendant, doing common labor as a section hand in repairing and maintaining the railroad tracks of 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 defendant maintained a bridge called Wheeler bridge, which was known as the west end of said section, and is located west of the village of Prescott upon defendant's line of railroad, which section, with the hand-cars, tools, implements and the employes, was under the control and supervision, and subject to the orders, of an employe of said defendant known as a section foreman, and at said time this plaintiff and other section hands, laboring for defendant, were under the control and subject to the orders of said section foreman, and 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 co-employe and fellow servant with this plaintiff and the other employes 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; that upon said day and for a long time previous thereto, 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 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 used 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 were propelled by an appliance attached thereto that was operated by hand, and propelled by employes of said company with handlebars; that said machine and car was also equipped with a brake for checking and stopping the speed of said car; that upon said day plaintiff, with other section men, who were employes 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 employes working on said section a specific and special order to desist from said work and load upon said hand-car their shovels, picks, lifting jacks, and other tools belonging to defendant, and specifically ordered and directed this plaintiff and said employes 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 it; that while traveling and proceeding under said order and direction of said section foreman who had charge of and management of the brakes and of said car, by virtue of the authority vested in him by the defendant, and while traveling upon said hand-car, subject to said orders of said section foreman, to perform the duties required of them, said hand-car, while running at a high rate of speed, to wit, at the rate of twelve miles an hour, over defendant's road, and while said car was being propelled as aforesaid by this plaintiff and said employes, 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 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 employes on said section, and while so running said hand-car at a high rate of speed on a down grade, said section foreman carelessly, negligently and with great force, without any notice to this plaintiff and the other employes of said car, suddenly applied the brakes to said car when there was no necessity therefor, at a point more than one mile from their destination, whereby said car was quickly, suddenly and violently checked, and reduced from a speed of twelve miles an hour to a speed of three miles an hour, by said section foreman's negligently and carelessly jumping upon and throwing his entire weight upon said brakes, he, said section foreman, then and there being a large and heavy man, and by reason of which negligent conduct this plaintiff was thrown off said car to the ground upon said railway bed, his body coming in violent contact with the ground, his head striking one of the iron rails of said track, and the car passing over his left leg, foot and ankle, 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; that at the time aforesaid, when he was so injured, he was obeying and conforming 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 said time, was his superior in authority upon said section, and said section foreman, this plaintiff and the other employes upon said section at said time were engaged in the same common service in said department of 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 employe 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, 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 a 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, 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 in two particulars with rule twenty-two of this court. 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...