Southern Railway Co. v. Limback
| Decision Date | 02 July 1908 |
| Docket Number | 21,034 |
| Parties | Southern Railway Company et al. v. Limback |
| Court | Indiana Supreme Court |
Rehearing Denied March 31, 1909.
From Dubois Circuit Court; E. A. Ely, Judge.
Action by Frank Limback against the Southern Railway Company and another. From a judgment for plaintiff, defendants appeal.
Reversed.
A. P Humphrey, J. D. Welman, R. M. Milburn and M. W. Fields, for appellants.
R. W Armstrong, W. E. Cox and Sol. H. Esarey, for appellee.
This action was commenced by appellee against appellant railway company and its coappellant, Robert Conner, to recover damages for personal injuries sustained by appellee on September 14, 1904, while in the employ of the company as a flagman or rear brakeman on one of its freight-trains. The action is based upon section one of the employers' liability act (§ 8017 Burns 1908, Acts 1893, p. 294), the material part of which is as follows: The complaint upon which the cause was tried alleges that the defendant railway company was a corporation duly organized, and owning and operating a line of steam railroad extending from New Albany, Indiana, west across said State and the state of Illinois to the city of St. Louis; that said railway, in its course through Indiana, passes through the counties of Floyd and Dubois; that eight miles west of the city of New Albany the defendant railway company kept and maintained a station known as "Duncan," at which all trains going east on defendant's line were required to stop; that on May 27, 1904, a special rule was promulgated by defendant company requiring that at said station of Duncan the rear end of a train should never be left without a man in charge; that plaintiff was a flagman on an extra freight-train; that Henry T. Morgan, as conductor of said train, had control thereof, and full authority and power to direct all of appellant's employes upon said train, including this plaintiff; that on September 14, 1904, while en route east over appellant's said road, said train was stopped at said station of Duncan, and plaintiff was ordered by conductor Morgan to "stay with the caboose attached to the rear end of the train, and not to leave it;" that defendant Robert Conner was an employe of said railway company and as such had charge and control of one of its locomotive engines attached to said train, which was run and operated as No. 640; that this train was run east over and upon defendant's line of railway from Princeton, Indiana, to the city of New Albany, and on the occasion in question was following the train upon which plaintiff and said Henry T. Morgan were at work in their respective positions; that the injuries received by plaintiff were occasioned by said freight-train, the locomotive engine of which was in charge of Conner, colliding with the caboose attached to the train on which plaintiff was at work, and in which he was at the time of the accident; that the negligence, which resulted in said collision, is imputed to Conner, the engineer in charge of the engine of the colliding train.
A demurrer to the complaint was overruled, and defendants answered by the general denial. Trial by jury, and verdict for $ 10,500 in favor of plaintiff against both of the defendants. Along with this general verdict answers to a series of interrogatories were returned. Defendants jointly and severally moved for judgment on these answers. This motion was overruled. They then jointly and severally moved for a new trial for various reasons assigned. This motion was denied, and judgment was rendered on the verdict. Defendants appeal, and have jointly and severally assigned errors. The errors in the main relied upon for a reversal of the judgment are predicated upon the motion for judgment upon the interrogatories and the motion for a new trial. Among the grounds urged for reversal is that the verdict of the jury is not sustained by sufficient evidence. It is insisted that the evidence discloses that plaintiff was guilty of contributory negligence. The evidence shows that on September 14, 1905 plaintiff was in the employ of defendant company as a flagman on one of its freight-trains. This train on that date was running east, and was stopped at Duncan, Floyd county, Indiana. It was composed of twenty-three cars, an engine and a caboose, and was followed by another freight-train consisting of twenty cars, a locomotive engine and a caboose, which was in charge of appellant Conner, the engineer thereof. The accident in question occurred about 2 o'clock in the morning of the latter date. At the time of the occurrence of the accident it was raining, and was quite dark. Conner's train collided with the caboose of plaintiff's train. At the time of the collision the latter train had been standing for about an hour on the main track at said station of Duncan, and was in charge of conductor Henry T. Morgan. At the time of the collision plaintiff was in the caboose, engaged in cleaning it, and was severely injured by the collision. He testified that, when his train stopped at Duncan, conductor Morgan ordered him to stay with his caboose. There is evidence to show that, at the time plaintiff's train stopped at Duncan, he knew there was a freight-train following his train. The contention of defendant railway company appears to have been that, according to the rules of the company, plaintiff was not, at the time he was injured, in the place where he should have been; that it was his duty to be on guard on the outside of the caboose, in order that he might flag the freight which was following his train; that, when his train was left standing on the main track at Duncan, the rules of the company required him to go beyond the rear of his train for the distance of at least eighteen telegraph poles and place torpedoes on the rail, etc.; that had he been on the outside of the caboose, as required, he would have escaped all injury. In fact, the jury found in the answers to the interrogatories that had plaintiff been on the ground, outside of his caboose, when Conner's engine approached the station of Duncan, he could have seen the...
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