Taylor v. Southern Ry. Co.

• Decision Date: 18 April 1913
• Docket Number: No. 7,857.,7,857.
• Parties: TAYLOR v. SOUTHERN RY. CO. et al.
• Court: Indiana Appellate Court

56 Ind.App. 625

101 N.E. 506

TAYLOR

v.SOUTHERN RY. CO. et al.

No. 7,857.

Appellate Court of Indiana, Division No. 2.

April 18, 1913.

Appeal from Circuit Court, Floyd County; Wm. C. Utz, Judge.

Action by Albert C. Taylor against the Southern Railway Company and others. From a judgment for defendants, plaintiff appeals. Reversed.Paris & Trusty and Stotsenburg & Weathers, all of New Albany, for appellant. Alex P. Humphrey and Edward P. Humphrey, both of Louisville, Ky., John D. Welman, of Evansville, and Walter V. Bulleit, of New Albany, for appellees.

IBACH, C. J.

This was an action against appellees to recover for personal injuries received by appellant while in the employ of appellees railway companies, occasioned by the act of appellee Newman, who was also in the employ of said companies. The court sustained the separate demurrers of each appellee to each of the first, second, third, and fourth paragraphs of amended complaint. Appellant refused to plead further, and judgment was rendered on the rulings on demurrers that appellant take nothing, and appellees recover costs. The errors here assigned are based on the action of the court in sustaining the aforesaid demurrers.

The four paragraphs of amended complaint are extremely long, covering 30 closely printed pages of the briefs, and cumbered with much unnecessary verbiage. They attempt to state a cause of action under section 8017, Burns 1908, cl. 4, which makes a railway company operating in this state liable to a person injured while in its employ and in the exercise of due care, where such injury results from the negligence of another “person in its service, who has charge of a locomotive engine upon its railway.”

The substantial averments of the first paragraph are that the appellees companies owned and operated a certain railroad; that, in connection therewith, they maintained a switch yard and a roundhouse in the city of New Albany, and near the roundhouse had an ash pit and a cinder pit track which led from the main track over the cinder pit to the roundhouse; that this track was a part of appellees' railway system, used as such, and used to transfer all locomotives to and from the main track to the roundhouse; that all road engines, at the end of each trip, were placed upon this siding by the engineers and delivered to the hostler to be moved and cleaned by him, and that at the beginning of each lunch hour, and the end of each period of service, the yard engines were placed upon this track in order that the hostler might take charge of them and remove them to the ash pit and there clean the fire and grates; that the engineers were directed by appellees companies, and were required by rule 573 of appellees' book of rules to examine and inspect their engines “at the end of each trip or other period of service”; that appellee Newman, in the performance of his duties as a hostler for appellees, was ordered and empowered by them to take charge of, move, and clean the engines;that Newman was required by rule No. 30 of the book of rules to ring the engine bell before starting such engines; that on May 30, 1908, appellant was employed by appellees as a yard engineer; that he placed his engine upon this siding at the beginning of the midnight lunch hour in order that Newman could take charge thereof to clean the fire; that then, in compliance with rule 573, he proceeded to examine and inspect the engine, and in so doing was required to stand upon the side rods of the engine; while he was so standing upon the side rods, defendant Newman, while in performance of his duties, as before set forth, without giving plaintiff any notice or warning, got upon and took charge of the engine to move it to the ash pits and clean the fire; that Newman, in violation of rule 30, carelessly and negligently set the engine in motion without ringing the bell, and without giving plaintiff any warning, and, before starting the engine, carelessly and negligently failed to ascertain if plaintiff was on the engine performing his duties, which he could have known in the exercise of due diligence; that plaintiff was in the exercise of due care and had no notice or warning that Newman was on the engine, and that it was about to be set in motion, and relied upon Newman's observing rule 30; that by reason of negligence of appellees in setting the engine in motion without warning and without ringing the bell, in violation of rule 30, plaintiff was thrown off the side rod of the engine, struck by the wheels, and thrown to the ground, and was severely injured.

The second paragraph is practically the same as the first, except that the rules of the company are not pleaded.

The third paragraph differs from the first in alleging further that the cinder pit track was used for the further purpose of switching and storing cars thereon; that it had been the custom and practice of the engineers for more than two years to examine and inspect their engines while they were in the charge of the hostler, all of which facts were well known to all of appellees; that appellant was employed, ordered, and directed by appellees companies, and was required by custom and by rule, to examine and inspect his engine after it was placed upon this track and after it was in charge of Newman; that, after placing the engine upon the track at the time, appellant gave notice to Newman that the engine was on the cinder pit track, and then proceeded to examine and inspect it.

The fourth paragraph differs from the third in that it avers that, when an engine was placed on this siding, the engineer was required to and did notify the hostler that it was there to be cleaned and examined; that, by placing the engine on the track and informing the hostler, the engineer surrendered the right of actual charge to the hostler; that the hostler was authorized, empowered, and required by appellees companies, upon receiving such notice, to take actual charge of, move, and clean the engines; that the yard engineers were not required to examine and inspect their engines before surrendering to the hostler the right of actual charge, but that for more than two years such engineers were privileged and had the right, and it had been the custom among them, to make the examination and inspection after the right of actual charge had been so surrendered to the hostler, and that for more than two years it was...