Southern Ry. Co. v. Howerton

• Decision Date: 13 March 1913
• Docket Number: No. 7,814.,7,814.
• Parties: SOUTHERN RY. CO. et al. v. HOWERTON.
• Court: Indiana Appellate Court

101 N.E. 121

SOUTHERN RY. CO. et al.

v.HOWERTON.

No. 7,814.

Appellate Court of Indiana.

March 13, 1913.

Appeal from Circuit Court, Crawford County; Wm. Ridley, Judge.

Action by James Howerton against the Southern Railway Company and others. Judgment for plaintiff, and defendants appeal. Affirmed.Alex P. Humphrey and Edward P. Humphrey, both of Louisville, Ky., John D. Welman, of Evansville, J. L. Suddarth, of English, and Walter V. Bulleih, of New Albany, for appellants. John W. Ewing, of New Albany, William H. Roose, of Louisville, Ky., Major W. Funk, of Corydon, Philip Seacat, of Cannelton, and Frank S. Roby, Ward H. Watson, Sol. H. Esarey, and E. D. Salsbury, all of Indianapolis, for appellee.

FELT, P. J.

This is a suit by appellee against the appellants for damages for personal injuries. The case was tried upon the third paragraph of complaint, which was answered by a general denial. From a judgment in appellee's favor for $2,750, this appeal is prosecuted.

The errors assigned question the correctness of the court's action in overruling the separate demurrer of each appellant to the third paragraph of complaint, in overruling their separate motions for judgment on the answers of the jury to the interrogatories, and in overruling the separate motion of each appellant for a new trial.

The third paragraph of complaint states, in substance, that appellant Southern Railway Company is a railroad corporation organized and doing business under the laws of the state of Virginia; that appellant Southern Railway Company of Indiana is a railroad corporation organized and doing business under the laws of the state of Indiana, and is now, and has been for more than five years last past, the owner of a certain line of steam railway “running from the city of Louisville in the state of Kentucky in a westwardly direction through Floyd, Harrison, and Crawford counties, in the state of Indiana, and thence westwardly across and through the states of Indiana and Illinois to the city of East St. Louis, in the state of Illinois; that said defendant Southern Railway Company is now, and for more than five years last past has been, the owner of the rolling stock, cars, coaches, engines, hand cars, tools, appliances, and other equipment used in the maintenance of said line of steam railway heretofore described;” that said companies are, and for more than three years last past have been, operating and running cars on said road as common carriers of passengers and freight for hire, in pursuance of a contract between said appellants, the terms of which are unknown to appellee, and have likewise repaired and maintained said track and equipment, and were so doing at the time of the accident hereinafter mentioned; that said railway runs east and west through Harrison county, in the state of Indiana, and through the towns of Corydon Junction and Ramsey, the latter being about three miles west of the former; that between said towns of Corydon Junction and Ramsey two highways cross said railway tracks; that one of said highways is just east of Ramsey and is known as Patterson's Crossing; that the other is about one mile west of Corydon Junction and known as Kaufman's Crossing; that on the 1st day of August, 1908, and for more than two weeks prior thereto, appellee was employed by appellants as a common laborer or section hand; that on said day, in pursuance of said employment, appellee was by appellants put to the work of hauling steel rails from the town of Corydon Junction to a point on said railway line one-half mile west of Kaufman's Crossing; that in so doing it was necessary for him to use a small car which he was required to push from said point west of Kaufman's Crossing to Corydon Junction, where the rails were to be loaded; that prior to the 1st day of August, 1908, appellants had instructed appellee to push said car upgrades when using the same, and when going downgrades to sit upon the side or end of the car and use his feet to control its speed, or to do so by means of a stick of wood held under the wheels as a chock, and thereby prevent the car from getting beyond control; that said push car was not equipped with any brake, means, or device for checking or controlling its speed; that it was safe for appellee to so operate said car when the track was clear of explosives or obstructions, but it was exceedingly dangerous and unsafe to so operate the same when explosives or torpedoes were on said track where the car was to pass, all of which was at all times well known to appellants and each of them, and to their servants in charge of said track; that it was the duty of appellants to furnish appellee a safe and secure place in which to perform said work, and to provide and furnish a safe and secure track and rails over which he was to run and operate said push car, and to keep said track clear and free from explosives, torpedoes, or other dangerous obstructions; that it was practicable so to do; that on said 1st day of August, 1908, appellants wholly disregarded their said duty and carelessly, unskillfully, and negligently failed to provide and maintain a safe and secure place for appellee in the performance of said work, and then and there carelessly and negligentlyprovided an insecure and defective track and rails over which appellee was required to perform said work in this: That appellants placed on the north rail of said track, at a point about 50 yards east of said Kaufman's Crossing, and where appellee was required to run said car, an explosive torpedo, and carelessly and negligently allowed and permitted said torpedo to be and remain upon said track until appellee's injury, as herein alleged; that there were no guards, barriers, or signals, of any kind whatsoever near or about said torpedo to warn appellee of its location, and appellants took no precaution whatever to warn appellee of the dangers of said torpedo exploding and injuring him; that, at the point where said torpedo was so placed and allowed to remain, said track was on a grade declining to the east; that appellants, “at all times herein mentioned, negligently and carelessly wholly failed and neglected to notify or warn this plaintiff of the presence of said torpedo on said track and rail, or that he was in any danger therefrom in the performance of his said work; that said defendants well knew, at all of said times herein mentioned, that said torpedo was on said track and rail in ample time to have removed same therefrom, or to have notified this plaintiff of the presence of said torpedo on said track and rail, before it was so exploded, and before plaintiff was so injured, as herein alleged, and well knew that this plaintiff could not run and operate said push car from said point west of said Kaufman's Crossing to said town or station of Corydon Junction without same running upon and over and exploding said torpedo, and said defendants well knew that the explosion of said torpedo by this plaintiff running or operating said push car over or upon the same would be extremely dangerous to this plaintiff; that this plaintiff at all times herein mentioned had no notice or knowledge of the presence of said torpedo on said track and rail, and at said place theretofore described, or of any dangers therefrom, and by the exercise of due care and diligence this plaintiff could not have learned of the presence of said torpedo at said point or of the dangers therefrom, all of which was well known to said defendants at all of said times herein mentioned; “that on said 1st day of August, 1908, appellee's eyes were defective so that he could not see small objects at a distance of more than five feet, and he was inexperienced in the use of torpedoes, all of which was well known to appellants; that on said day, in the discharge of his aforesaid duties under his employment, he started to go with said push car from said point about one-half mile west of Kaufman's Crossing to Corydon Junction and get a load of rails and transport the same on said car from Corydon Junction to said point west of Kaufman's Crossing; that, when he reached said crossing and the point where the grade begins to decline to the east, he seated himself on the push car, with his feet hanging over the side thereof and near the ground, as he had been instructed to do, and while so riding on said car in the discharge of his duties as such employé, when said car reached a point 50 yards east of Kaufman's Crossing, without any knowledge on the part of appellee of the presence of a torpedo on said track or the rails thereof, said car, without warning to appellee, ran into and struck said torpedo and caused the same to explode with great force and violence, which explosion caused pieces of metal and parts of said torpedo to strike appellee's right leg and severely injure him.

Appellants insist that the complaint is insufficient for the reason that it does not appear from its averments that the track, roadbed, push car, or other equipment of appellants was in any way defective, out of repair, or unsafe; that the allegation in the complaint that the torpedo was placed upon the track by appellants necessarily means, and can only mean, that the same was so placed by a fellow servant of appellee; that the doctrine of a safe place to work has no application to the case.

[1] It is sufficient in a complaint to charge negligence directly against the defendants, whether corporations or individuals; and the pleading in this instance is not insufficient because it alleges that the torpedo was negligently placed upon the track by the appellants. Pittsburgh, etc., Co. v. Lightheiser, 163 Ind. 247-265, 71 N. E. 218, 660;Ohio & Miss. R. Co. v. Collarn, 73 Ind. 261-265, 38 Am. Rep. 134.

[2] Furthermore, it is averred in the complaint that the appellants carelessly and negligently failed to provide appellee a safe place in which to work by placing upon the track, over which he was required to run said push...