The Louisville and Nashville Railroad Company v. Kemper

• Decision Date: 11 May 1897
• Docket Number: 17,991
• Parties: The Louisville and Nashville Railroad Company v. Kemper
• Court: Indiana Supreme Court

47 N.E. 214

147 Ind. 561

The Louisville and Nashville Railroad Company v. Kemper

No. 17,991

Supreme Court of Indiana

May 11, 1897

From the Warrick Circuit Court.

Reversed.

A Gilchrist and C. A. DeBruler, for appellant.

A Dyer, G. V. Menzies, W. A. Cullop and C B. Kessinger, for appellee.

OPINION

Hackney, J.

The appellee sued and recovered against the appellant for personal injuries. The complaint, to which the lower court overruled a demurrer, was substantially as follows: The appellant maintained a freight depot in the city of Evansville, and along one side thereof maintained a track upon which cars were moved and placed for loading and unloading freight. The appellee was employed by the appellant in and about said depot in loading and unloading freight into and from such cars. For twelve months prior to June 29, 1894 the appellant had negligently permitted a part of said track, for a space of eight feet, to become defective and dangerous by permitting the overflow from a hydrant within said depot to run upon that part of said track until the foundation thereof for said space had become soft mud, and the track, by reason thereof, had sunk nine inches under the weight of cars passing over said space. During said period of twelve months the appellant failed to provide locomotives to move the cars along said track and required its employes, including the appellee, to move them by hand, and day by day to drive cars from the sunken track by the propulsion of other cars against them, using the momentum thus acquired to displace the cars from the sunken part of the track. During the forty-eight hours prior to the date mentioned, "coal cinders had been placed on the top of the soft mud before mentioned, but the foundation of the track was not improved and the wheels of the car would sink the rails below the surface of said cinders, and the cinders placed on the top of said mud as mentioned were loose, movable and treacherous, and of this latent condition of said cinders this plaintiff (appellee), while in the employ of said defendant (appellant), had no notice whatever. And said defendant further disregarding its duty, negligently permitted the coupling link of a loaded car on said track next to the southeast of said sunken place to be and remain bent downward and so fastened that the strength of one man was insufficient to put it in position for coupling; that the defect in said link was latent and hidden and this plaintiff [appellee], while so employed, had no notice thereof whatever. While said track and loaded car were in the condition mentioned and in the absence of a locomotive, as aforesaid, on the 29th day of June, 1894, the wheels of a freight car were in the sunken part of said track, and six employes of said defendant (appellant) were engaged in propelling the loaded car aforesaid northwestwardly against the freight car fastened in the sunken part of said track above described, when, in the performance of his duty, at the proper time he went in between said cars to make the coupling, which he was unable to accomplish by reason of his inability to place in position the pin to fasten the coupling link above mentioned, the loaded car upon the level track was pushed against the car in the depression and, by the impingement, the car lodged in the depressed part of the track was partly driven from the depression or sunken part of the track, and being uncoupled, for the reason mentioned, the loaded car was by the concussion repelled a few feet, and by reason of the depressed condition of the track again came forward. In the meantime the plaintiff (appellee) had stepped outside the southwest track, placed his shoulder against said freight car to continue its movement out from the depressed track and the cinders underneath his feet gave way and his right foot slipped down upon the southwest rail of said track, pressed down by the weight of the car below said cinders, and the wheels of the advancing loaded car rolled upon his right foot, and a large part thereof was thereby crushed, removed and destroyed. And that the defendant (appellant) well knew of the said defective condition of said link and track and had been notified of said defective condition of said track, and could, by the exercise of diligence, have known of the same." There was also a general allegation that the appellant was free from fault or negligence.

In the argument no significance is attached to the failure of the company to supply a locomotive to move cars, and the fact that for twelve months the appellee had engaged in moving them in the manner in which they were moved on the day of his injury may be regarded as a waiver or assumption of the hazard involved in such failure. The complaint does not allege that any necessity or requirement existed for coupling the loaded car to that which was sought to be moved from the depression in the track, nor does it appear that the injury sustained was due to the alleged defective coupling link or pin, nor does it appear that the effort to make a coupling was more than a remote incident or circumstance in the chain of events leading to the injury. The sufficiency of the complaint, therefore, must be considered with reference alone to the allegations of negligence in maintaining a defective track.

Where defects...