The Chicago, St. Louis And Pittsburgh Railroad Co. v. Fry

• Citation: 28 N.E. 989,131 Ind. 319
• Decision Date: 30 October 1891
• Docket Number: 14,789
• Parties: The Chicago, St. Louis and Pittsburgh Railroad Company v. Fry, Administratrix
• Court: Supreme Court of Indiana

28 N.E. 989

131 Ind. 319

The Chicago, St. Louis and Pittsburgh Railroad Company v. Fry, Administratrix

No. 14,789

Supreme Court of Indiana

October 30, 1891

Petition for a Rehearing Overruled April 28, 1892.

From the Cass Circuit Court.

The judgment is reversed, with instructions to overrule the demurrer to the second paragraph of reply, all costs against the appellant back to the ruling upon the demurrer to the reply.

N. O Ross and J. C. Nelson, for appellant.

G. N Funk and D. C. Justice, for appellee.

OPINION

Miller, J.

The appellee, as the legal representative of Daniel L. Fry, deceased, brought this action against the appellant to recover for injuries received by him while in the service of appellant as brakeman on a freight train, which caused his death.

The complaint charges that one of the cars of the defendant's train upon which the decedent was employed was what is called a "gondola" car, upon which the brake-staff was located at the end of and close to the edge of the car; that this brake-staff was dangerous and unsafe to be used for the purpose for which it was intended and provided, by reason of its being too light, weak and fragile, and for the further reason that at a point on the same at or near the ratchet wheel at the bottom surface of the deck or floor of the car it was cracked and broken on opposite sides to the depth of one-half an inch on each side, leaving only one-half inch in diameter of sound iron at that point; that it had been so cracked and broken for two months before the plaintiff's decedent was injured, and that the defendant had notice of its defective and unsafe condition for that length of time; that the said Daniel L. Fry was ignorant of its defective and dangerous condition, and was injured without fault on his part while in the discharge of his duties.

The defendant answered the complaint by a general denial and two affirmative paragraphs, which will be noticed hereafter.

The cause was submitted to a jury, and under the directions of the court a special verdict was returned, upon which a judgment was rendered in favor of the plaintiff.

The action of the court in rendering judgment in favor of the plaintiff and against the defendant is the only error assigned by the appellant in this court.

It is contended by the appellant that the facts found in the special verdict are insufficient to support a judgment against the company. The omissions pointed out are (1) that it does not find that the defendant had notice of the defects in the brake-staff, or (2) that the decedent was ignorant of them.

It is also claimed that the plaintiff did not make out, but departed from, the case stated in the complaint.

The findings, so far as they relate to these questions, are as follows:

"First. We find that the defendant, on the 22d day of December, 1886 was the owner and was operating a railroad from Chicago, Illinois, to Columbus, Ohio, and passing through the State of Indiana, known as the Chicago, St. Louis and Pittsburgh Railroad, and had been operating the same for more than two years immediately preceding that time.

"Second. That on said day, and for about two years prior thereto, Daniel L. Fry, the decedent, had been and was in the service of said defendant as a brakeman, serving upon its freight trains, and that on said day, at about 3:25 o'clock in the morning, he started out on the second section of train No. 40, as rear brakeman, from Logansport, Indiana, and destined for Bradford Junction, in the State of Ohio.

"Third. That it was his duty as such brakeman to set brakes upon said train at all regular stopping places for said trains, and when so directed by the conductor and when brakes were called for by the engineer running the train.

"Fourth. That said Daniel L. Fry continued on said train, serving as rear brakeman, until the train reached a point about one and one-half miles west of the station of Woodington, in the State of Ohio, when the engineer called for brakes, and said Fry, who was then in the caboose, went forward, in answer to said call, for the purpose of setting the brakes, and that while in the act of setting the brake on the rear end of the first car in front of the caboose, the brake-staff of the brake that he was attempting to set broke off immediately under the ratchet wheel, and that said Fry was thereby caused to fall upon the track, and was run over by the wheels of the caboose and injured, so that in about five hours thereafter he died from said injuries.

"Fifth. We find that the car upon which the brake-staff was fastened that broke and caused said Fry to fall and receive said injuries, was not owned by the defendant, but was a foreign car, owned by the Columbus, Hocking Valley and Toledo Railroad Company, and that on the 9th day of December, 1886, the defendant received said car from the owner, at Columbus, Ohio, loaded with coal, to be transported to Washington Heights, in the State of Illinois, and there delivered to the Chicago and Rock Island Railroad Company to be unloaded, and when returned to the defendant to be by it transferred back over its road to the owner at Columbus, Ohio; that said car, so loaded, was brought by the defendant as a part of one of its trains to Logansport, Indiana, on the 10th day of December, 1886, where said car was kept for repair until the 15th of said month, on which day it was taken to Washington Heights and delivered to said Chicago and Rock Island Railroad Company, in whose possession it remained until the 21st day of said month, when it was returned by the said company to defendant and brought to Logansport, Indiana, where it arrived at eleven o'clock p. m. of said day, and that on the next morning, the 22d, said car composed a part of the second section of train No. 40, occupying the position of the first car in front of the caboose, and started for Columbus, Ohio, about 3:25 a. m., with said decedent upon it, and that it proceeded in that position until the happening of the accident, as hereinbefore found.

" Sixth. That the defendant has at all times since it commenced operating said railroad, kept persons employed at Columbus, Ohio, Logansport, Indiana, and Washington Heights, Illinois, whose duties have been to inspect all cars passing over the road that stopped at either of said points, and when found to be out of order to report them for repairs, and that no car, when so reported, was permitted to go out upon the road until repaired, and that said car was so examined by said persons when it was received at Columbus, Ohio, on the 9th day of December, 1886, and again on the 10th day of the same month at Logansport, Indiana, and again at Washington Heights, Illinois, on the 21st, and at Logansport again on the evening of the same day in the same month, and that in all said examinations said car was found to be in apparent good order by the persons making such inspections, except in the inspection at Logansport on the 10th, when said car was reported out of order and was repaired, and was again inspected after said repairs were made, and that in none of said inspections was any defect found in the brake-staff that broke on said car, and said car was not reported for repairs, or that it was out of order, except on the 10th, as above found, which defect was not in the brake-staff.

"Ninth. We find that said brake-staff was one and one-fourth inches in diameter, which was the size used for such purposes, and was of sufficient size, if sound; that said brake-staff, at the time of said accident, showed that it was cracked on each side and opposite each other to the depth of about one-fourth or three-eighths of an inch, and that the iron so cracked presented a rusty appearance, which is the only evidence before us of the length of time said cracks had been there; and we find that said cracks or breaks of said brake-staff were the cause of its breaking and causing the injuries received by said decedent.

"Thirteenth. We find that said brake-staff was weakened and cracked on each side, so that the defect could not have been discovered without taking it off the car and striking it with a hammer and that this was not done in any of the inspections made; that at 3:25 o'clock in the morning of the day that Daniel L. Fry lost his life, and when the train started out from...