The Lake Erie and Western Railroad Co. v. Mugg, Administrator

• Decision Date: 10 June 1892
• Docket Number: 15,268
• Citation: 31 N.E. 564,132 Ind. 168
• Parties: The Lake Erie and Western Railroad Company v. Mugg, Administrator
• Court: Indiana Supreme Court

31 N.E. 564

132 Ind. 168

The Lake Erie and Western Railroad Company v. Mugg, Administrator

No. 15,268

Supreme Court of Indiana

June 10, 1892

Petition for a Rehearing Overruled Sept. 15, 1892.

From the Tippecanoe Circuit Court.

Judgment affirmed.

W. E Hackedorn, J. R. Coffroth, T. A. Stuart and F. W. Chase, for appellant.

J. F McHugh, A. L. Kumler, B. W. Langdon and T. F. Gaylord, for appellee.

Miller J. Coffey, J., dissents.

OPINION

Miller, J.

This was an action by the appellee against the appellant for the alleged wrongful killing of her intestate. Issue upon a general denial of the complaint, trial by jury, verdict for the appellee, and judgment upon the verdict.

The complaint charges that the plaintiff's intestate, William Mugg, was in the employ of the defendant as a yard switchman, and that a part of his duties was the coupling and uncoupling of cars in its yards; that on and before the 22d day of January, 1888, there was, in a side-track, where the intestate was engaged, a defective, unsafe, insufficient and dangerous rail, caused by there being a strong and sharp piece of rail called a sliver, which extended outward and along the outside of the rail; that the "defectiveness, unsafeness, insufficiency and dangerousness of said rail, and the existence of said piece of rail, or sliver, as aforesaid, was known to the defendant at and before the 22d day of January, 1888, or might have been known by it, by the exercise of proper care; and that the existence or presence of the piece of said rail or sliver was not known by the said decedent prior to the 22d day of January, 1888, nor before the time of the reception of the injuries by said decedent as herein described."

"The plaintiff further says that on the 22d day of January, 1888, the said decedent was engaged in the discharge of his said duties of yard switchman on said side-track, and that there were, then and there, two cars to be coupled; that one of said cars was stationary, and the other was in motion and approaching said stationary car for the purpose of permitting the coupling of the same to be made by the said decedent; that the decedent, to make said coupling of said cars, had to approach and was approaching the draw-head of said stationary car from the outside of 'the rail having said sliver, and at a point where said sliver was as aforesaid, and while approaching said draw-head, as aforesaid, the decedent was moving his foot across said rail without any negligence on his part, and while moving his said foot across said rail, as aforesaid, the said sliver caught and became fastened in the heel of the shoe or boot then and there on the decedent's said foot, without any fault of the said decedent, and in such wise that the foot of the decedent was on said rail, and the decedent could not, without any fault on his part, withdraw said foot from said rail, or his said foot from said boot on said rail, as aforesaid; that, while said foot was so fastened and held as aforesaid, said car, moving and approaching said stationary car as aforesaid, did approach, and the wheels of said moving car did then and there, without any fault of the decedent, run on and over the said foot and leg of said decedent, and thereby broke and mashed the same, and other injuries were then and there and thereby received by said decedent without any fault on his part; that afterwards, on the -- day of January, 1888, the said William C. Mugg died from said injuries; that said decedent received said injuries and died without any fault on his part, and through the negligence of the defendant."

The action of the court in overruling a demurrer to this complaint is assigned as error.

The objection urged to the complaint is, the claim that it shows that the deceased had the same means of knowing of the existence of the defect in the rail that the appellant had; that all he had to do was to have opened his eyes to have seen the defect.

We are satisfied that the allegations of the complaint, charging that the injury was caused by the fault and negligence of the defendant, and that the plaintiff's intestate had no knowledge of the defective condition of the rail, or existence of the sliver, and that the injury was caused without any fault or negligence on his part, are sufficient to repel a demurrer. The fact that he did not, while engaged in making a coupling, see the sliver can not, of itself, raise a presumption of contributory negligence on his part. Nor as against the averment of want of knowledge on his part, can it be determined that he must have known, or should have known, of the defective condition of the track. The duty of track inspection was not, primarily, one of his duties.

The objections urged to this complaint were so fully discussed in the well considered case of Ohio, etc., R. W. Co. v. Pearcy, 128 Ind. 197, 27 N.E. 479, that we deem it unnecessary to extend this opinion by a re-examination of the question. To the same effect see Pennsylvania Co. v. Horton, post, p. 189; Louisville, etc., R. W. Co. v. Hanning, 131 Ind. 528, 31 N.E. 187.

Application was made to the court, after the issues had been closed, for permission to file an affirmative answer, which was refused; after the refusal, the appellant asked permission to file it as a matter of right.

We do not find it necessary to review the ruling made by the court in refusing to open up the issues, for the reason that the evidence, which is in the record, and the special verdict returned by the jury, show that the matters, set forth in the answer proposed to be filed, were given in evidence, and embraced in the verdict, and it, therefore, appears, affirmatively, that the appellant was not injured by the ruling. Miller v. Hardy, 131 Ind. 13, 29 N.E. 776; Ball v. Ball, ante, p. 156; State v. Vogel, 117 Ind. 188, 19 N.E. 773.

Over seventy causes for a new trial were assigned in appellant's motion, the overruling of which is assigned as error in this court. Considerations of time and space will prevent an examination in this opinion of each of them in detail.

It is insisted, with unusual zeal and earnestness, that the special verdict of the jury, in many of its essential details, is not only against the weight of evidence, but that there is no evidence sufficient "even under the hard rule of this court," to warrant an affirmance of the judgment.

We have studied the evidence with care, but are unable to agree with counsel in this assumption.

In passing upon this question, we can not consider the sworn copy of the opinion of the court, giving his reasons for overruling the motion for a new trial, taken down by a stenographer, and filed as an independent paper with the transcript.

Appeals in this court are tried by the record, duly authenticated by the clerk of the trial court, and by this alone. Elliott's Appellate Procedure, section 186.

The appellant offered in evidence certain rules and regulations promulgated by the company for the guidance of its...