Southern Ry. Co. v. Limback

• Citation: 85 N.E. 354,172 Ind. 89
• Decision Date: 02 July 1908
• Docket Number: No. 21,034.,21,034.
• Parties: SOUTHERN RY. CO. et al. v. LIMBACK.
• Court: Indiana Supreme Court

172 Ind. 89

85 N.E. 354

SOUTHERN RY. CO. et al.

v.LIMBACK.

No. 21,034.¹

Supreme Court of Indiana.

July 2, 1908.

Appeal from Circuit Court, Dubois County; E. A. Ely, Judge.

Action by Frank Limback against the Southern Railway Company and another. Judgment for plaintiff, and defendants appeal. Reversed, and new trial ordered.

M. W. Fields, John D. Welman, and Richard M. Milburn, for appellants. Cox & Armstrong and Sol. H. Esarey, for appellee.

JORDAN, J.

This suit was commenced by appellee against appellant railway company and its co-appellant, Robert Conner, to recover damages for personal injuries sustained by him 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 the fourth clause of the employers' liability act, which is as follows: “Fourth. Where such injury was caused by the negligence of any person in the service of such corporation who has charge of any *** locomotive engine or train upon a railway.” Section 8017, Burns' Ann. St. 1908; section 7083, Burns' Ann. St. 1901. The complaint upon which the cause was tried, among other things, charges that the defendant railway company was a corporation, duly organized, etc., owning and operating a line of steam railroads extending from New Albany, in the state of Indiana, west across said state and the state of Illinois to the city of St. Louis; that said railway, in its course through the state of Indiana, passes through the counties of Floyd and Dubois. 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. The complaint further alleges that on the 27th day of May, 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, and one Henry T. Morgan, employed by defendant, was the conductor thereof, and as such had control of said train, and had full authority and power to direct and control all of appellant's employés upon said train, including this plaintiff. This latter train, on September 14, 1904, while en route east over appellant's said road, was stopped at said station of Duncan, and it is averred that plaintiff was ordered by Conductor Morgan, in charge of said train, to “stay with the caboose attached to the rear end of the train, and not to leave it”; that defendant, Robert Conner, was an employé 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. This train was run east over and upon defendant's line of railway from Princeton, Ind., to the city of New Albany, and on the occasion in question was following a few minutes behind the train upon which plaintiff and the said Henry T. Morgan were at work in their respective positions. The injuries received by appellee, as disclosed by the complaint, 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. The negligence which resulted in said collisionis imputed to Conner, the engineer in charge and control of the engine of the colliding train. A demurrer to the complaint was overruled, and appellants answered by the general denial. Trial by jury, verdict in favor of appellee, against both of the appellants, for $10,500. Along with this general verdict answers to a series of interrogatories were returned. Appellants 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. Appellants 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 appellee is guilty of contributory negligence. The evidence shows that on September 14, 1905, appellee was in the employ of appellant company as a flagman on one of its freight trains. This train on that date was running east, and was stopped at a station named Duncan, in Floyd county, Ind. It was composed of 23 cars, an engine, and caboose, and was being followed by another freight train consisting of 20 cars, a locomotive engine, and 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 its occurrence it was raining and quite dark. Conner's train collided with the caboose of appellee'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 Henry T. Morgan, the conductor. At the time of the collision appellee 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 or directed him to stay with his caboose. There is evidence to show that he, at the time his train stopped at Duncan, knew that there was an extra freight train following in the rear of his train. The contention of appellant at the trial appears to have been that appellee, under the circumstances, was not at the time he was injured, according to the requirements or rules of the company, 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 extra freight which was following his train; that when his train was left at Duncan standing on the main track, the rules of the company required him to go beyond the rear of his train, for the distance of at least 18 telegraph poles, and place torpedoes on the rail, etc.; that had he been on the outside of the caboose, as...