Southern Ry. Co. v. Harpe
| Decision Date | 28 December 1944 |
| Docket Number | 28046. |
| Citation | 58 N.E.2d 346,223 Ind. 124 |
| Parties | SOUTHERN RY. CO. v. HARPE. |
| Court | Indiana Supreme Court |
Appeal from Scott Circuit Court; William T Fitzgerald, judge.
Phelps F. Darby, of Evansville, Telford B. Orbison, of New Albany and S. R. Prince and H. G. Hedrick, both of Washington, D C., for appellant.
Robert R. Kelso and Lorch & Lorch, all of New Albany, for appellee.
The appellee, a section foreman employed by the appellant, brought this action to recover damages alleged to have resulted from the negligence of the defendant by reason of which he was struck by a train and injured. There was a judgment for the plaintiff.
Many errors are assigned, but we need only consider the assignments in the motion for a new trial questioning the sufficiency of the evidence and an instruction.
There are two averments of negligence. One is that the track supervisor, Frank Anson, under whose direction the plaintiff was working, told the plaintiff that the east bound passenger train would pass on the 'passing track,' and that because of his reliance on this statement he was injured. The other is that a town ordinance of the town of English, adopted in 1897, fixed a speed limit of four miles per hour, and that the passenger train, when it struck the plaintiff, was exceeding that speed.
There is little conflict in the evidence. The plaintiff had been employed by the defendant as a section foreman for more than thirty years. Frank Anson had been employed as a track supervisor for twenty-six years. On the day in question, the section crew of which the plaintiff was foreman and two other crews were working under the direction of Anson a short distance west of the town of English. At about 3:30 o'clock in the afternoon they stopped work and started on their motordriven section cars toward English. The railroad tracks run approximately straight east and west through the town. In addition to the main track there is a passing track about a quarter of a mile long south of the main track. When the section cars approached the switch point leading off the main track to the passing track at the west there was a freight train switching. The section men stopped until the switching was finished. The plaintiff testified that Anson went to the freight engine and talked to the engineer; that he came back and said: The 'car-house' is also called the tool-house. It is located about 500 feet east of the west switch point. The freight train was too long to be contained on the passing track, and the plaintiff testified that under such circumstances passenger trains would at times head in on the passing track and permit freight trains to pass on the main track. The section cars proceeded to a point opposite the car-house, where the cars were removed from the tracks, and the men sat on some kegs on the north side of the main track. They sat there about fifteen minutes before the passenger train whistled for the station. The plaintiff testified that after the train whistled one of the men said: 'He will hit that water keg.' The plaintiff looked and saw a 16-gallon wooden keg, which was used for drinking water on one of the section cars, sitting on the north end of the ties on the passing track, on the outside of the rail. He testified that when no one made any attempt to move it, he went to get it, intending to pull it between the tracks so that it would be in the clear. When he got up he saw the passenger train. He went between the tracks, moved the keg, and started back, and, as he stepped on the main track, he was struck by the passenger engine, which was traveling not to exceed ten miles an hour. He said that he was 'sure 23 was by me,' and that he 'thought 23 was coming in back of me.' He did not look, but said: He said he believed the passenger train would be on the passing track because Anson said that it would, and he thought he knew what he was talking about. He was knocked to the ground and an arm and a leg were broken and he was otherwise injured. Mr. Anson testified that he talked to a brakeman, who said there was going to be a 'saw-by,' which means that when a train is longer than the passing track, it has to come in and let the other train pass, and that: 'From what the brakeman told me and from the maneuvers of freight train 66, I assumed the passenger train would take the passing switch'; that he told the plaintiff and the other foreman 'to take their cars to the car-house and put them off and stay in the clear until the saw-by was completed'; that in stating that the passenger train would take the passing track he was only expressing his own opinion; that no one had told him so. Anson followed the section cars to the car-house and sat down on a keg next to the plaintiff, where they engaged in conversation for twelve or fifteen minutes; that he then noticed a water keg between the tracks, and said: 'Whose keg is that?'; that he thought it was in the clear; that some minutes after he referred to the keg, the plaintiff got up, and, without any instructions from any one, started across the main track; that Anson said to him: 'Gussie, look out'; that when Harpe started the passenger train was in plain view and he hardly had time to get across the track. Several section men testified that Anson shouted a warning to Harpe when he started toward the track.
It is clear that when Anson made the statement that the passenger train would pass on the passing track it was not intended to be acted upon, since at the same time he directed the plaintiff and all the men to get off and wait until both trains went by and then to go home. When the plaintiff, of his own volition, and contrary to the directions from his supervisor to stay off, started back upon the track, he was warned to 'look out.'
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