Southern Ry. Co. v. McNeeley

• Decision Date: 10 June 1909
• Docket Number: No. 6,622.,6,622.
• Parties: SOUTHERN RY. CO. et al. v. McNEELEY.
• Court: Indiana Appellate Court

44 Ind.App. 126

88 N.E. 714

SOUTHERN RY. CO. et al.

v.McNEELEY.^d1

No. 6,622.

Appellate Court of Indiana, Division No. 2.

June 10, 1909.

Appeal from Superior Court, Vanderburg County; Alexander Gilchrist, Judge.

Action by E. Bert McNeeley against the Southern Railway Company and others. Judgment for plaintiff, and defendants appeal. Reversed, with instructions.

See, also, 88 N. E. 710.

Alex P. Humphrey, E. P. Humphrey, John D. Welman, C. A. De Bouler, and G. R. De Bouler, for appellants. Thomas W. Lindsey, for appellee.

COMSTOCK, J.

Appellee brought this action against the appellants, Southern Railway Company, Guy G. Evans, William H. Beatty, and James Buchanan to recover damages alleged to have been sustained by the collision of two passenger trains, upon one of which appellee was riding. The complaint is in two paragraphs. The first alleged that the plaintiff was a passenger for hire and the defendants negligently ran said passenger trains together. The second alleges that the plaintiff was riding in the cab of the locomotive engine with the knowledge of the engineer and conductor, and attempts to charge that the defendants willfully and purposely injured the plaintiff by running said passenger trains together. The averments in each paragraph are substantially the same, except that in the first paragraph the acts and omissions are charged as negligence, while in the second they are meant to be charged as willful. The facts as shown by the pleadings and the evidence are as follows: Appellant railroad company was the owner and operator of a single-track railroad from Louisville, Ky., to St. Louis, Mo. Said road passed through the cities of Princeton, Ind., and Mt. Carmel, Maud Station, Belmont, Brown's Crossing, and Fairfield, Ill. Said defendants maintained telegraph offices at each of said points, which were kept open day and night, except Belmont and Maud Station, which were day offices. As a part of its transportation system it operated between the aforesaid termini, at and prior to the time of the injury, two daily passenger trains-No. 1 and No. 2; No. 1 an east-bound, and No. 2 a west-bound, train. Belmont, Ill., was the regular meeting place for said trains as fixed by defendant's time tables, and they were due to meet at said point at 2:42 a. m. by regular schedule time. It was the duty of the telegraph operators to deliver to the conductor and engineer of trains orders issued by the train dispatcher, and was the duty of such operators to indicate by signals (semaphores) whether they had any orders for an incoming train. At the time the plaintiff received his injuries the defendant Evans was in the employment of the defendant railway company as train dispatcher, located at Princeton, Ind., and had charge and control of the movement and operation of all trains on the defendant company's line between Princeton, Ind., and St. Louis, Mo.; that on the morning in question the defendant Evans discovered that said trains were behind time, and issued an order, No. 5, to both of said trains to run 30 minutes late, which order was delivered to them. Afterwards he issued a second order, No. 6, which was transmitted to the operator of the defendant company at Brown's Crossing, Ill., for the defendants Beatty and Buchanan, conductor and engineer in charge of train No. 1, and to the operator at Princeton, Ind., for the train crew in charge of train No. 2, directing said trains to meet and pass at Maud Station, Ill. Order No. 6 was delivered to the crew in charge of train No. 2, but the operator at Brown's did not deliver said order to Beatty and Buchanan, in charge of train No. 1, a superior train of the same class, and who, without any knowledge of the change of meeting place, proceeded under order No. 5, until a point a short distance east of Maud Station, where train No. 1 collided with train No. 2, causing the injuries complained of. A trial was had by jury, and upon instructions by the court, the jury found in favor of all the defendants on the first paragraph, and rendered a verdict against the appellants Southern Railway Company, Beatty, and Buchanan upon the second paragraph of complaint.

The first error assigned challenges the sufficiency of the second paragraph of complaint. The second paragraph of the complaint is framed upon the theory of willful injury. It charges that the collision was caused by the willful and purpose neglect of duty of the defendant William H. Beatty, and the defendant James Buchanan, and the defendant Guy G. Evans, and by the willful and purpose neglect of the telegraph operator of the defendant company at its Brown's Crossing...