The Lake Erie and Western Railroad Company v. McHenry
| Decision Date | 18 April 1894 |
| Docket Number | 1,189 |
| Parties | THE LAKE ERIE AND WESTERN RAILROAD COMPANY v. McHENRY |
| Court | Indiana Appellate Court |
Petition for rehearing overruled September 21, 1894
From the Marion Superior Court.
Judgment affirmed.
W. H H. Miller, F. Winter, J. B. Elam, W. E. Hackedorn and J. B Cockrum, for appellant.
W. V. Rooker, for appellee.
The appellee sued to recover damages for injuries received by him while coupling cars, by reason of a defective engine "whose appliances for taking steam into the steam chests and cylinders from her steam generating apparatus had become and were defective, worn, perforated, misplaced, and broken, so that said engine was not obedient and responsive to the control of the engineer."
There was a trial by jury and verdict for appellee. The only questions presented to us relate to the action of the court, first, in overruling appellant's motion for judgment upon the answers to interrogatories, notwithstanding the general verdict; second, in overruling appellant's motion for a new trial.
Answers to the special interrogatories will not control the general verdict unless irreconcilable with it. Such answers will not be aided by intendment. They must of themselves establish some fact or facts absolutely incompatible with the appellee's right of recovery upon any evidence admissible under the pleadings; otherwise the general verdict will stand. Ohio, etc., R. W. Co. v. Trowbridge, 126 Ind. 391, 26 N.E. 64; Town of Poseyville v. Lewis, 126 Ind. 80, 25 N.E. 593; Evansville, etc., R. R. Co. v. Weikle, 6 Ind.App. 340, 33 N.E. 639.
When examined with this rule of law in view, we are unable to discover any irreconcilable inconsistency between the general verdict and the answers to interrogatories.
From these answers it appears that appellee was a switchman in appellant's employ, whose hand was caught between the "deadwoods" of two cars which he was engaged in coupling; that he knew the character and location of the deadwoods, and that the proper mode of making the coupling was by keeping his hand and arm below the deadwoods while making it, and while withdrawing his hand and arm after making it; that he knew that while so engaged he was likely to be injured if he brought his hand or arm between the "deadwoods;" that he sustained the injury while withdrawing his hand.
These facts do not conclusively establish contributory negligence upon the part of appellee. If, as might be proved under the complaint, the appellee was standing between the cars, holding the link of an approaching car to direct it to its proper place in the stationary car, and, when just about ready to complete the coupling, the approaching car gave a sudden lurch or spring forward, which was the result of appellant's negligence, appellee would not necessarily be negligent in failing, under such an emergency, to observe, in withdrawing his hand, that exact mode which would be absolutely safe. When thus startled by the sudden and unexpected increase in the speed of the car, he might naturally and instinctively jerk out his hand in the most direct and quickest manner possible without being guilty of negligence because he did not pursue the safest method. One who does an act under an impulse or belief created by a sudden danger produced by another's negligence, will not necessarily be regarded as in fault, even though the act might be deemed negligent if performed in the absence of circumstances indicating sudden peril. Clarke v. Pennsylvania Co., 132 Ind. 199, 31 N.E. 808; Woolery, Admr., v. Louisville, etc., R. W. Co., 107 Ind. 381, 8 N.E. 226; Indianapolis, etc., R. R. Co. v. Stout, Admr., 53 Ind. 143; Louisville, etc., R. R. Co. v. Kelly, 6 Ind.App. 545, 33 N.E. 1103. Buswell Pers. Inj., section 142.
Other facts set forth in the answer relate to the character of the defect. It is impossible for us to say, from these answers that the dry pipe was not defective long before this accident. Even conceding that the final principal break in the pipe occurred only immediately before the accident, the pipe may have been worn thin in several places, with a slight leak in one, and there may have occurred suddenly a...
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