Southern Indiana Ry. Co. v. Baker

• Decision Date: 06 March 1906
• Docket Number: No. 5,471.,5,471.
• Citation: 37 Ind.App. 405,77 N.E. 64
• Parties: SOUTHERN INDIANA RY. CO. v. BAKER.
• Court: Indiana Appellate Court

37 Ind.App. 405

77 N.E. 64

SOUTHERN INDIANA RY. CO.

v.BAKER.

No. 5,471.

Appellate Court of Indiana, Division No. 2.

March 6, 1906.

Appeal from Circuit Court, Daviess County; H. Q. Houghton, Judge.

Action by Lafayette Baker against the Southern Indiana Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.F. M. Trissal and Brooks & Brooks, for appellant. Hiram McCormick, F. E. Gilkinson, and Padgett & Padgett, for appellee.

WILEY, J.

Appellee was an employé in appellant's service in the capacity of a brakeman, and while so employed was injured by a collision between two trains. This action was prosecuted by him to recover damages for the injuries thus sustained. His complaint was in one paragraph, to which a demurrer for want of facts was overruled. The answer was in one paragraph. Trial by jury resulting in a general verdict in his favor, and, over appellant's motion for a new trial, judgment was rendered thereon. The overruling of the demurrer to the complaint and the motion for a new trial are assigned as errors.

After averring that appellant is a corporation, owning, and operating a line of railroad within the state of Indiana, the complaint avers that on the 2d of November, 1903, appellee was engaged as a brakeman upon one of appellant's trains, running from Latta to Sullivan, in said state; that the train was composed of an engine, tender, and caboose, and was in charge of an engineer and conductor, employés of appellant; that on that day, and wholly unknown to appellee, a freight train, composed of a tender, engine, 10 or more loaded cars of coal, and a caboose, in charge of an engineer and conductor, employés of appellant, was coming from Gilmore, on the line of appellant's road, toward the train on which appellant was a brakeman; that at a point between Latta and Gilmore, while the train on which appellee was employed was moving at the rate of 20 miles an hour, and while he was standing by the side of a door in the aisle of the caboose acting under his orders as such brakeman, and without any fault on his part, said train and the train of coal cars, engine, and tender, as aforesaid, “were by the negligence of the officers of said company, and by the carelessness and negligence of the engineers and conductors in charge of said trains, carelessly and negligently run violently against and upon each other, thereby causing a collision,” thereby producing injuries to appellee which are specifically described, and by which he avers he was permanently disabled and unfitted for hard manual labor, and from pursuing his occupation as a railway brakeman, to his damage in the sum of $5,000.

The only objection urged to the complaint is that it does not charge by direct averment that the officers, engineers, and conductors, of the two trains were in charge of the trains; that it does not charge directly, but only by recital, that these men had anything to do with the trains at the time of the collision. We do not so read the complaint. It is specifically averred that the train upon which appellee was riding “was in charge of the engineer and conductor, employés of defendant”; also that the train with which it collided was “in charge of an engineer and conductor, employés of defendant.” As this is the only objection pointed out to the complaint, it is not well taken. The demurrer was properly overruled.

In their brief counsel for appellant address the principal part of their argument to the proposition that there is an entire lack of evidence to sustain the verdict. A résumé of the evidence, so far as it is material to the determination of this question, will disclose the basis of counsel's contention. The evidence is embraced within very narrow limits, and the facts disclosed thereby, which have any material bearing upon the issues, are few. Appellee, his father, and two employés of appellant were the only witnesses introduced, and they all testified on behalf of the appellee. By appellee's evidence it is shown that he was a brakeman in the employment of appellant, and at the time of the accident was on a construction train; that as such brakeman it was his duty to assist in switching and making up trains and help guard and safe handle trains; that he was required to look for obstruction and see that switches were all right and safe for signals; that he was required to look to the conductor for orders. It is also disclosed by his evidence that a “spur line” starts from Latta, on the main line of appellant's road, and runs south 8 or 10 miles; that the train he was on when injured consisted of an engine, tender, and caboose; that the train left Latta, going south, about 7:10 in the morning; that the conductor in charge was a person by the name of O'Day; that the name of the engineer was Gibson; that there was a head brakeman, by the name of Stafford, and a fireman; that they were all employés of appellant; that the train was going at 15 or 20 miles an hour; that the train rounded a curve and ran into engine No. 25, “or a coal train”; that when the train left Latta he did not know that another train was on the track; that he did not receive any orders from the train dispatcher; that orders from the train dispatcher were always received by the conductor and engineer; that the train he was on was going to a steam shovel and pile driver to take the men to work, and that said men were on the caboose with him. Appellee also testified that it was the custom to send out a flagman in the direction of another train which might be...