The Cleveland, Cincinnati, Chicago and St. Louis Railway Company v. Keely

• Decision Date: 11 May 1894
• Docket Number: 16,773
• Citation: 37 N.E. 406,138 Ind. 600
• Parties: The Cleveland, Cincinnati, Chicago and St. Louis Railway Company v. Keely, by His Next Friend
• Court: Indiana Supreme Court

37 N.E. 406

138 Ind. 600

The Cleveland, Cincinnati, Chicago and St. Louis Railway Company v. Keely, by His Next Friend

No. 16,773

Supreme Court of Indiana

May 11, 1894

Petition for Rehearing Withdrawn Sept. 20, 1894.

From the Marion Circuit Court.

The judgment is affirmed.

B. K Elliott, W. F. Elliott, J. T. Dye, A. Baker and E. Daniels for appellant.

W. V Rooker, for appellee.

OPINION

Howard, C. J.

This was an action for personal injuries, brought by the appellee against the appellant.

The material allegations of the complaint are: That on the 9th day of November, 1891, the appellant company was operating a line of railroad extending along Louisiana street and across New Jersey street, in the city of Indianapolis; that on said day the appellee was, and now is, an infant eleven years of age, a pupil attending the public schools of said city, and residing with his parents on the west side of said New Jersey street, and north of said line of railroad; that the public school at which he was a pupil was situate on New Jersey street, and south of said line of railroad; that the roadway of New Jersey street at and near the railway tracks was obstructed and impassable to appellee by reason of the accumulation of filth thereon, and of debris from certain public works and improvements thereabouts then in progress; that on said day he was on his way homeward to his dinner at the noon hour of intermission of said school, and had passed northward along the west sidewalk of New Jersey street until he arrived at the point of crossing the railroad tracks, where he found the appellant was wholly obstructing said street intersection with a locomotive engine and train of cars which the appellant's servants were moving to and fro along said Louisiana street tracks, and across New Jersey street, in the act of switching said cars, and distributing the same upon the yard tracks on the west of the New Jersey street intersection; that it was then and there a violation of an ordinance of said city to obstruct said street intersection with said cars or locomotive engine for more than three minutes at any one time, except in case of accident; that on said occasion there was no accident, but said obstruction was maintained for a long time, to wit, fifteen minutes, by reason of the moving to and fro of said train for the purposes and in the manner aforesaid, so that the further progress of appellee was then and there delayed for fifteen minutes; that during all the time that appellee was so halted and delayed on the south side of said tracks, a cold and heavy rain was falling, and the appellee had begun to suffer and was suffering from the exposure to which he was subjected; that after appellee had been so delayed for fifteen minutes the appellant's servants halted said train so that an aperture or opening of coupling in said train, as it was then connected together, was directly in front of the sidewalk, where appellee was so delayed; that upon halting said train, the engineer thereon abandoned his usual post on the locomotive engine, and, apparently to appellee, went away; that appellant then and there maintained a flagman, whose duty it was to direct persons as to their crossing said tracks; that appellant well knew of appellee's situation; that appellee being in great haste, and in fear of punishment if further delayed, and being in distress from said exposure, and believing it was the duty of the flagman to direct him across said tracks, as he had under like circumstances previously done and assisted to do, and relying upon the superior wisdom, experience and discretion of said flagman, and of the apparent absence of said engineer, as appellant well knew, appellee, pursuant to the recommendation and direction of said flagman, then and there given, undertook, in a careful manner, to cross the said tracks through said coupling aperture and opening; and, while he was so doing, appellant's servants, though they well knew appellee's situation, negligently, carelessly and wrongfully set the said locomotive engine and cars in motion, by reason of which, and without any fault on his part, the appellee's left foot was caught, crushed and mangled, and he has suffered great bodily pain and mental anguish, and is permanently disfigured, crippled and disabled, all to his damage, etc.

On the overruling of a demurrer to this complaint, the appellant answered in general denial, and the cause was submitted to a jury for trial.

The evidence on the part of the plaintiff, appellee, having been concluded, counsel for the defendant, appellant, moved the court for a nonsuit, and asked the court to instruct the jury to return a verdict for the defendant on the evidence of the plaintiff. This motion was argued in the absence of the jury, and, on the reassembling of the jury, was overruled by the court.

Thereupon the defendant filed its demurrer to the evidence introduced by the plaintiff, in which demurrer the plaintiff joined. Upon the demurrer so filed to the evidence by the defendant, and the joinder therein by the plaintiff, the court delivered its instructions to the jury, and directed a verdict assessing damages only; and after argument by counsel, the jury returned an assessment of damages in the sum of $ 4,000. The court then overruled the demurrer to the evidence, and rendered judgment on the verdict.

The errors assigned on the appeal are:

1. The overruling of the demurrer to the complaint.

2. The overruling of the motion to instruct the jury to return a verdict for the defendant.

3. The overruling of the demurrer to the evidence.

4. The rendering of judgment on the verdict.

Counsel for appellant suggest, rather than argue, that the complaint is deficient.

The case of Lake Shore, etc., R. W. Co. v Pinchin, 112 Ind. 592, 13 N.E. 677, is cited to prove that one who attempts to pass between the coupled cars of a freight train standing temporarily across a street, and either knows, or might know, that the train is likely to move at any moment, is guilty of contributory negligence. But in the case before us it does not appear, from the complaint, that the appellee either knew or might know, by the use of his faculties, that the train was likely to move at any moment. On the contrary, after standing in the rain for fifteen minutes, waiting while the train moved to and fro across the street, he perceived that the train came to a halt with an aperture or opening of coupling directly in...