The Louisville, New Albany And Chicago Railway Co. v. Pedigo

• Decision Date: 12 October 1886
• Docket Number: 12,520
• Citation: 8 N.E. 627,108 Ind. 481
• Parties: The Louisville, New Albany and Chicago Railway Company v. Pedigo
• Court: Indiana Supreme Court

8 N.E. 627

108 Ind. 481

The Louisville, New Albany and Chicago Railway Company v. Pedigo

No. 12,520

Supreme Court of Indiana

October 12, 1886

Petition for a Rehearing Overruled Dec. 16, 1886.

From the Marion Superior Court.

Judgment affirmed with costs.

G. W Easley, G. R. Eldridge and W. Irvin, for appellant.

F. M Charlton, T. W. Lockhart, J. O. Pedigo, F. J. Van Vorhis and W. W. Spencer, for appellee.

OPINION

Mitchell, J.

This action was brought by Pedigo against the railway company to recover damages for personal injuries alleged to have been suffered by him on January 31st, 1884, at Broad Ripple, near the city of Indianapolis, while being carried as a passenger on one of the company's trains.

The injury is alleged to have been sustained without the plaintiff's fault, by the breaking down of a railway bridge, negligently maintained by the company over White river. In consequence of the fall of the bridge, the car in which the plaintiff was seated was thrown into the river below.

The plaintiff had judgment in the court below for $ 4,500. A reversal of this judgment is now asked upon various errors assigned.

In the order in which the questions have been presented, the first ground upon which a reversal is asked involves a ruling of the court in admitting certain testimony concerning the rate of speed at which the train was proceeding when the disaster occurred.

The conductor of the train, having been examined as a witness on behalf of the defendant, was asked on cross-examination the following question: "How fast was the train running when it struck the bridge?" Over objection he was permitted to give the following answer: "From fifteen to eighteen miles an hour."

Another witness, who was engaged in making repairs to the bridge at the time it fell, having testified on the defendant's behalf, was asked on cross-examination whether he had not said to a person named, at a time and place mentioned, that the supports which held the bridge when the train came upon it would have been sufficient but for the high rate of speed at which the train was going. The witness answered, over objection: "I might have told him that; * * I said that I believed the train was running faster than it ought to over the bridge."

The appellant's argument is, that as there was no allegation in the complaint that the train was run at a negligent rate of speed, the admitted evidence was outside of any issue in the case, and that hence the ruling was both erroneous and hurtful.

This view of the question is not tenable. While the complaint contains no such allegation as that referred to, it is charged therein that at the time the train ran on to the bridge it was "wholly and entirely unsafe and dangerous to run an engine and train over the same," on account of its insecure and defective condition, growing out of defects in its original construction, and because of the negligent and unskillful manner in which repairs upon it were being prosecuted.

The issue thus tendered made any evidence relating to the condition of the bridge at the time it fell, the manner in which it was supported during the process of repairment then going on, the weight of the train and the speed at which it was being run, competent as part of the res gestoe.

If, owing to the condition of the bridge, it was dangerous to run an engine and train upon it at all, it might evince a degree of negligence bordering upon recklessness if the train was run upon it at such a rate of speed as to multiply the probabilities that the bridge would fall.

If the bridge was not supported while undergoing repairs so as to sustain the weight of the train, at the rate of speed at which the company saw fit to run it, the company was negligent in the maintenance of its bridge. Grant that trains must be run over bridges while they are undergoing repairs, the duty of the company, nevertheless, is to so adjust the bridge and regulate the speed of overpassing trains, as that the lives of passengers will not be put in peril.

The next ground upon which a reversal is asked is, that the court below refused to submit to the jury the sixth, seventh, eighth and ninth special interrogatories propounded by the appellant. These were as follows:

"Interrogatory No. 6. Do you find from the evidence that the employees of said defendant, engaged in putting thimbles or tubes into the chords of said bridge, were negligent in the means used or process of putting such tubes or thimbles in the bridge?

"Interrogatory No. 7. If your answer to interrogatory No. 6 is yea, in what did the negligence consist?

"Interrogatory No. 8. Do you find from the evidence that the employees of defendant, engaged in putting thimbles or tubes in the chords of the bridge, used the same means, appliances and mode that are ordinarily used by other railway companies in doing like work under like circumstances?

"Interrogatory No. 9. If you answer interrogatory No. 8 in the negative, state from the evidence what difference there was in the means, appliances or mode used by the defendant and other railway companies doing like work under like circumstances."

The ruling of the court in rejecting the foregoing interrogatories was correct.

The sixth and seventh were nothing more nor less than an invitation to the jury to express an opinion upon a question of law involved in the case. That it was not their function to do this, has been determined in a number of cases. Pittsburgh, etc., R. R. Co. v. Spencer, 98 Ind. 186; Toledo, etc., R. W. Co. v. Goddard, 25 Ind. 185; Woolery v. Louisville, etc., R. W. Co., 107 Ind. 381, 8 N.E. 226, and cases cited.

Such questions of fact, if any there be, as are included in the eighth and ninth interrogatories, are so intermixed with assumptions and other matters, to which an answer would be nothing more than a conclusion of an uncertain character, as renders the propriety of the...