Southern Ry. Co. v. Wilkins
| Decision Date | 19 November 1931 |
| Docket Number | No. 14129.,14129. |
| Citation | 95 Ind.App. 130,178 N.E. 454 |
| Parties | SOUTHERN RY. CO. v. WILKINS. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from Posey Circuit Court; Herdis F. Clements, Judge.
Action by Lucy Wilkins, administratrix, against the Southern Railway Company. From judgment for plaintiff, defendant appeals.
Affirmed.John D. Welman, of Evansville, and Embree & Baltzell, of Princeton, for appellant.
T. Morton McDonald and Sanford Trippet, both of Princeton, and Espenschied & Espenschied, of Mt. Vernon, for appellee.
This was an action brought by the appellee against the appellant wherein the appellee sought to recover a judgment for damages for the death of James R. Wilkins, an employee of the appellant, whose death it is alleged to have resulted from injuries received while working as a car inspector for the appellant in the Southern Railway Company's yards in Princeton, Ind.
The action is under the Federal Employers' Liability Act of April 22, 1908, and subsequent acts amendatory thereof (45 USCA §§ 51-59).
The complaint in substance alleges:
That on the 23d day of September, 1927, said appellant had made up in its yard at the city of Princeton, Ind., a train of empty coal cars on one of the tracks in its said yard used for that purpose, which said train of coal cars was being moved by said appellant from points in the state of Illinois and other states to mines located on the line of said appellant's railroad within the state of Indiana for the purpose of being used for transporting coal by said appellant from points in the state of Indiana to points in the state of Illinois and other states. That in so making up said train a caboose was first placed on said track, and said empty coal cars were coupled onto said caboose at the east end thereof. That at the same time said appellant was making up a train going west to some place in the state of Illinois, the exact destination of which said train is to the appellee unknown, and which said train was being made up on the same track with said eastbound train. That in making up said westbound train the caboose thereof was coupled to the west end of the caboose of said eastbound train, and in the process of making the same up cars were coupled to said caboose at its west end.
That on said day appellee's decedent, James R. Wilkins, was in the employ of said appellant as a car inspector, and that in the course of his employment he was ordered and directed by said appellant to inspect all cars in all trains moving in and out of appellant's yard at the city of Princeton while he was on duty, and to make what was designated as a yard test of all air brakes on all cars and cabooses moving in and out of said appellant's said yard. That under the method of operation adopted by said appellant and its said employees at said point at said time and place all the cars and cabooses in both trains being made up on said track at the same time were connected with what was known as the yard test plant for air brake apparatus. That, after the brakes on trains that were made up had been tested by said yard test plant, another test known as the engine test of said air brakes was made by connecting the air brake line on said engine with the train line and cutting out said yard test plant.
That said yard test plant was so cut out by turning a valve or angle cock at the rear of the caboose of said train. That said engine test was so made after said engine was coupled into said train and said air line connected and notice thereof given by the engineer of said train by sounding a blast on the steam whistle attached to said locomotive. That upon the sounding of said signal by said locomotive engineer it then became the duty of said inspector to go between the caboose and turn the angle cock at the rear of said caboose so as to cut out said yard test plant.
That at the time of the happening of the injuries herein complained of said eastbound train had been made up and the engine coupled onto the same and the train line connected up with the air brake apparatus on said engine. That thereupon said appellant ordered and directed the said James Wilkins by means of a signal given by the steam whistle attached to said engine to go between said two cabooses and turn said valve or angle cock at the rear of the caboose of said eastbound train and cut out the yard air brake test plant as aforesaid.
That pursuant to said order, direction, and signal the said James R. Wilkins went in between said two cabooses and turned said angle cock and cut out said yard test plant. That each and all of the foregoing facts were to said appellant and to all its servants and employees working in said yard at said time well known. That, while the said Wilkins was in between said cabooses and engaged in the performance of his duty and discharging said order and direction as aforesaid, said appellant carelessly and negligently made a flying switch of a cut of cars from the west, and carelessly and negligently kicked said cars in upon said track and against the cars coupled to the west of said cabooses with great and unnecessary force and violence, without any warning or notice whatsoever to the said Wilkins, and without any one being upon said cars to control and manage them, and thereby caught and crushed, bruised, mashed, and injured the said Wilkins through the body and abdomen, and thereby inflicted painful and serious injuries upon the body and person of said Wilkins.
That the said Wilkins died as a result of said injuries, on, to wit, the 30th day of September, 1927, leaving surviving as his heirs and only heirs at law his widow, Lucy Wilkins, and two infant children, to wit, a daughter, Madge Wilkins, aged 16 years, and a son, James Wilkins, aged 7 years, all of whom were dependent upon him for support.
Wherefore the appellee prayed judgment against the appellant in the sum of $60,000 and for all other just and proper relief in the premises.
The appellant filed a demurrer to the complaint on the grounds that said complaint does not state facts sufficient to constitute a cause of action, which was overruled, whereupon the appellant filed an answer in general denial to the complaint.
There was a trial before a jury. The jury returned a verdict in favor of appellee and against appellant for $10,000, for which amount judgment was rendered. The appellant filed a motion for a new trial on the grounds that the verdict of the jury is not sustained by sufficient evidence and is contrary to law; also the court erred in admitting certain testimony of witnesses in evidence and refusing to admit the...
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