Terre Haute & I.R. Co. v. Sheeks

• Decision Date: 20 February 1900
• Citation: 155 Ind. 74,56 N.E. 434
• Court: Indiana Supreme Court
• Parties: TERRE HAUTE & I. R. CO. v. SHEEKS.

155 Ind. 74

56 N.E. 434

TERRE HAUTE & I. R. CO.

v.SHEEKS.¹

Supreme Court of Indiana.

Feb. 20, 1900.

Appeal from superior court, Marion county; J. W. Harvey, Judge.

Action by Luella Sheeks against the Terre Haute & Indianapolis Railroad Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

John G. Williams and Miller & Elam, for appellant. J. E. McCullough, H. N. Spaan, and A. J. Beveridge, for appellee.

JORDAN, J.

This action was instituted by the appellee to recover damages for personal injuries sustained by her, while a passenger, by reason of the derailment of a train. The complaint is in five paragraphs. The answer was a general denial. There was a trial by jury, and a special verdict returned, which was framed, by means of interrogatories, under the act of 1895. The jury assessed appellee's damages at $15,000. Motion by appellant for judgment in its favor upon the special verdict was denied, as was also its motion for a new trial, and judgment was rendered on the special verdict in favor of appellee; and these several rulings of the court are the only errors assigned.

Each of the five paragraphs of complaint alleges that appellant is a railroad corporation and a common carrier engaged in operating a railroad in the state of Indiana; and appellee on the 28th day of January, 1895, was a passenger on one of its trains running from the city of Terre Haute to the city of Indianapolis, and as such passenger she had paid the usual fare, which entitled her to be carried to the place of her destination. We need not recite the particular grounds of negligence upon the part of the appellant to which appellee, under either the first, second, or third paragraph of the complaint, attributes the accident or derailment of the train, for the reason that the special verdict apparently rests upon, and follows substantially, the material facts alleged in the fourth paragraph of the complaint, and also in the fifth paragraph, so far as they relate in the latter to the derailment of the train in question being due to a defective and unsafe switch constructed and maintained by the appellant. The fourth paragraph charges negligence upon appellant's part as follows: “That on the line of said railway, to wit, at or near the town of Coatesville, the defendant had, prior to the 28th day of January, 1895, negligently and carelessly constructed a switch, and was on said day carelessly and negligently maintaining said switch thus carelessly and negligently constructed. That the defendant was guilty and negligent in the maintaining of said switch, in this, to wit: The rails constituting the said switch, or movable portion of the track, and which are moved to the one side or the other according as the train was intended to be run on the main track or the side track, should be securely connected the one with the other, by a proper number of iron bars extending from the one to the other of such movable rails, and securely fastened to each, to the end that said movable rails should be securely fastened in their position in regard to each other; that there should be a sufficient number of bars thus connecting such movable rails, extending from the point where such movable rails join to the one connecting the track to the hinge where they were attached to the other of the connecting tracks, so that, if either of the movable rails should be broken by or in the passage of the trains over the same, yet, notwithstanding such break in such rails, each piece thereof would be held in a firm position parallel to the other of said movable switch rails, and the train not thrown from the track; that such movable rails should be connected by such tie bars at a point very near to each end of said movable rails, and at such intervening distances between such tie bars thus near the ends of such rails as will effectually hold such movable switch rails firmly parallel to each other, or, in the event one of said rails shall be broken, hold the two pieces thereof parallel to the rail which has not been broken. The plaintiff avers in this case that the defendant, notwithstanding it well knew that the said switch should have been constructed as above described, wholly failed and neglected so to do, but, on the contrary, negligently and carelessly constructed said switch as follows: It placed on the inside of each of said movable rails, and at a distance of two or three inches therefrom, a guard rail which was bolted through three cast-iron fill blocks, some two or three inches in width, to the said switch rails, such guard rails being those bolted to such switch rails at three points (the first at a point a few inches from the free end of such switch rails, the second four feet therefrom, and the third four feet from said second point); that the outer point of such guard rails extended a few inches out and beyond the free ends of said movable switch rails; that there were no tie bars whatever connecting such movable switch rails, the only tie bar used in the construction of such switch being the tie bar connecting the ends of such guard rails at a point outside and beyond the free ends of said switch rails, which tie bar was also used as a throw bar to throw the switch from the one side to the other, according to whether the train was intended to run upon the main or side track; that the said movable rails in said switch were nineteen feet long; that by reason of the construction of said switch in the manner just indicated for a great distance, to wit, ten feet from the hinge end of said movable switch rails, there was nothing whatever to hold the pieces of such switch rails in the event of their, or either of them, being broken parallel to each other, so as to prevent a train from running off the track of the said road in the event each of such switch rails should be broken; that, by reason of the manner in which said switch had been constructed and was being maintained, the same was dangerous and defective, and that if either of the rails constituting the movable portion of said switch should be broken between the hinge end thereof and the attachment of said switch rail to said guard rail at the nearest point thereto, by or in the passage of a train of cars over the same, there would be great danger that all the cars of said train behind the one thus breaking said switch rail would be thrown from the track. And the plaintiff further shows that on the said 28th day of January, 1895, she was a passenger upon one of defendant's trains running over said portion of said road; that when said train came upon said switch the engine upon said train, or some of the cars in said train in front of the car in which the said plaintiff was riding, broke one of the rails in said movable portion in said switch at a point between the hinge end thereof and the point of its nearest attachment to said guard rail, and thereupon and by reason thereof the car in which this plaintiff was riding was, with great force and violence, thrown from the track, broken, and overturned; and that thereby this plaintiff was thrown with great force and violence upon and against the sides of said car,” etc. The fifth paragraph charges the negligence and the happening of the accident as follows: “That on said day said defendant was guilty of negligence in the operation and maintenance of its said road, and in the running of its said train over the same, in this, to wit: That it negligently and carelessly erected a defective and dangerous switch on a curve in the line of its road at or near the town of Coatesville, which switch was defective and dangerous in this, to wit: That the movable rails constituting the switch point, which are movable to the one side or the other as desired, so as to cause the train to pass upon the one track or the other as desired, were not properly held or fastened securely in their position with relation to each other, and so that, if either rail should be broken, the pieces thereof would be held in their position parallel to the other rail; that, on the contrary, said switch was so negligently and defectively constructed that, if the engine or cars forming the front portion of a train of cars should break one of the switch rails, the portion of the train behind the engine or cars thus breaking such rail would be thrown from the track.” This paragraph then proceeded to further allege, as negligence upon the part of the appellant:

First, that it used rails that were not sufficient to bear the trains and engines which were used by appellant in operating its road; second, that the engine in use upon the occasion of the accident was too heavy and too high, etc.; third, that the train at the time it was derailed was being run at a rate of speed far in excess of what was safe and prudent under the existing conditions of things as therein set forth. The paragraph, continuing, charges “that, by reason of said negligent and careless conduct on the part of defendant, when the train in which this plaintiff was riding came upon said curve and switch at or near the town of Coatesville, the car in which this plaintiff was riding was thrown with great force and violence from the track, and was broken and overturned, and that thereby this plaintiff was thrown with great force and violence upon and against the sides of said car,” etc.

Eliminating from the special verdict facts or matters which may be said to be of an evidentiary character, and also what may be considered as mere conclusions upon the part of the jury, it may be said to embrace the following facts:

On January 28, 1895, defendant was a common carrier of passengers for hire, and was operating a railroad between Greencastle and Indianapolis. The plaintiff on that day, after procuring a ticket entitling her to ride on a train known as “No. 20,” on said railroad, became a passenger on that train at Greencastle, with the intention of riding to Indianapolis. This train was a fast...