OPINION
McBride, J.
While
counsel have argued two alleged errors in this case, only one
of them is assigned. The one error which is assigned,
however, presents, substantially, every question involved in
both, and rests on a ruling of the circuit court sustaining a
demurrer to the second paragraph of the complaint.
The
suit is by the appellant, as administratrix of the estate of
William H. Stewart, deceased, who was killed by a train of
cars on a line of railroad operated by the appellee.
The
paragraph of complaint in question, omitting prefatory and
concluding technical averments, is as follows:
"That
on the day of -----, 188-, the said William Stewart was in
the employ and service of the defendant, in the capacity of
bridge carpenter, and that said decedent, on the day last
aforesaid, was engaged in said service of said defendant, at
and on the Silver Creek bridge, which was a part of
defendant's line of said road from Jeffersonville to New
Albany; that the trains of defendant, going west on said
railroad, ran on the north track, and the returning train ran
on the south track, and when said trains were meeting and
passing each other there was twenty-five inches, and no more
of space between said trains; that it was the custom of the
defendant to convey said bridge carpenters, including said
Stewart, from Jeffersonville to the place of their work in
the morning, and then stop said train for them to get off,
and said train stopped only long enough to allow said workmen
time to get off, and then reconvey said employees from said
place back to Jeffersonville; that said place of stopping was
not a place of stopping to receive or disembark passengers,
and when said passenger trains stopped to allow said
employees to get off the train, they were required to
immediately and promptly get off from said train, so as to
allow it to proceed on its trip; that the place where said
train stopped to disembark said decedent and the other
persons with whom he worked was on an embankment twelve feet
high, and on the south side of decedent's train there was
a broad level -- of fifteen feet width, and on
the north side of said train was the slope of the embankment,
so close to the train as to afford no convenient opportunity
to get off there; that the only convenient, and the usual
place for said decedent and his fellow-workmen to get off
from said train was on the south side of said train, and was
a safe place except when the east bound train on the other
track might be passing decedent's train while decedent
and the other hands were disembarking, and while said other
train was passing it was a dangerous place for said employees
to disembark; that the time of starting said east and west
bound trains from Jeffersonville was fixed by the defendant,
and the defendant had negligently and carelessly failed and
neglected to make any rules or regulations for the movement
of said east bound train that required the employees running
that train to check its speed while passing said west bound
train, or that required said crew of hands, or any of them on
the east bound train, to signal and give warning of their
approach, by ringing the bell or sounding the whistle, but,
on the contrary, required said train to run eastward at a
rate of thirty-five miles per hour when passing from New
Albany to Jeffersonville; that, on the morning of the day
last aforesaid, said decedent and his fellow-workmen were
conveyed on said defendant's said passenger train to
their place of work, and stopped about one hundred yards
beyond their tool chest, and decedent immediately proceeded
to get off from said train, and was at the door of the car he
had been riding in when his train came to a full stop, and
went out on the steps of said car to disembark on the south
side, and looked to see if there was any approaching train;
that the steam and the smoke from the engine belonging to his
train settled immediately down on the ground so thick and
heavy that he could not and did not see the train approaching
from the west, and the steam was escaping from the engine
attached to the defendant's train, and made so much noise
that decedent could not, and did not, hear the coming train,
although he...
