The Cincinnati, Indianapolis, St. Louis and Chicago Railway Company v. Darling

• Decision Date: 25 February 1892
• Docket Number: 15,244
• Citation: 30 N.E. 416,130 Ind. 376
• Parties: The Cincinnati, Indianapolis, St. Louis and Chicago Railway Company v. Darling
• Court: Indiana Supreme Court

30 N.E. 416

130 Ind. 376

The Cincinnati, Indianapolis, St. Louis and Chicago Railway Company v. Darling

No. 15,244

Supreme Court of Indiana

February 25, 1892

From the Ohio Circuit Court.

Judgment reversed, with costs.

J. T Dye, W. H. Dye and J. K. Thompson, for appellant.

O. F Roberts, N. S. Givan and M. J. Givan, for appellee.

OPINION

McBride, J.

The appellee was a day laborer, employed by the appellant to shovel dirt and gravel on its track. While riding on a tender to an engine, going from Lawrenceburgh to the place where he was employed to work, the engine collided with another engine, coming from the opposite direction, drawing a train of cars, and the appellee was hurt. He brought this suit to recover damages for his injuries, which he alleged were caused by the actionable negligence of the appellant.

While the appellant has assigned many errors, and has argued several, we find it only necessary to consider two of the questions presented. The court overruled separate demurrers to each paragraph of the complaint. The jury, by answers to interrogatories, show that their general verdict is based upon the first, third and fourth paragraphs of the complaint, and the appellant insists that these paragraphs were all bad, and that the court erred in its rulings upon the demurrers. But one objection is pointed out, and this is common to the three paragraphs. All show that the appellee was, as above stated, riding upon the tender to an engine, for the purpose of reaching his place of work.

The first paragraph avers that he was "ordered and directed by the defendant" to get upon the engine to ride, and that he did so, and sat down upon the tender attached to the engine, with his back to the engine.

The third paragraph avers that he was "requested and directed" by the defendant to get upon the engine to ride to his place of work, and the fourth, that when hurt he was "being taken, on an engine, by said defendant" from his home to his place of work.

The objection to the complaint, as stated by counsel for the appellant in their brief, is as follows:

"This shows that plaintiff was not a passenger; he had no duties to perform on this engine, or in connection with it. It does not show that the company was under any obligation to carry him from his home to the place of his work, or that there was any reason why he should not have walked. It does show that he got aboard of the engine and sat down on the tender attached to the engine, with his back to the engine, to be taken to his place of work. He took a position of obvious peril, and turned his back in the direction from which danger was to be apprehended. The complaint shows 'his injury was the result of his own recklessness and folly. He was himself the author of his misfortune.'"

Without considering the effect of the averments that the appellee was riding on the engine by the direction or command of the appellant, it is enough to say of each of these paragraphs that each contained the averment that the plaintiff was himself without fault or negligence which contributed to his injury. This was sufficient, unless it was overcome by the specific averments of the complaint, showing, notwithstanding, that he was guilty of contributory negligence. We can not say that the mere averments that he was riding on the engine, or on the tender, or that he was riding with his back to the engine, were any or all of them sufficient to overcome the general averment of freedom from fault. We think the court did not err in overruling the demurrers.

We quote from the first paragraph of the complaint all of its averments charging negligence upon the part of the appellant: "That said defendant carelessly, negligently and recklessly managed the business of said defendant in running, or operating and managing, the engines, locomotives and cars on said defendant's road; that said defendant, on the day and year aforesaid, carelessly, negligently and recklessly ran an extra train, called a cattle train, from Cincinnati to the city of Lawrenceburgh, and that said defendant failed and neglected to give notice to its said servants in charge of the engine on which said plaintiff was seated of said extra train being sent from Cincinnati to the city of Lawrenceburgh over the track of said defendant, and that before said cattle train reached the city of Lawrenceburgh said defendant also started said engine, on which said plaintiff was seated, to the point, or place, between Lawrenceburgh Junction and Lawrenceburgh City, where said plaintiff was to work for said defendant on its said track, and that by reason of the careless, negligent and reckless operating and running of said train and engine as aforesaid, said train and said engine on which said plaintiff was seated collided and run into each other with great force, and by reason thereof," etc.

It will be observed that the negligence charged is that the appellant started the "cattle train" and the engine in question toward each other, over the same track, without notice to the employees operating them.

The engine on which the appellee was riding was known as "No. 63," and was operated by one Mahan as engineer and...