The Ohio & Mississippi Railway v. Early
| Citation | 40 N.E. 257,141 Ind. 73 |
| Decision Date | 12 April 1895 |
| Docket Number | 16,271 |
| Parties | The Ohio and Mississippi Railway Company v. Early, Administratrix |
| Court | Supreme Court of Indiana |
From the Jackson Circuit Court.
The judgment is reversed, and the cause remanded, with instructions to sustain the motion for a new trial.
E Barton, H. D. McMullen, W. R. Johnson and H. R. McMullen, for appellant.
W. K Marshall, J. A. Zaring, M. B. Hottell, B. K. Elliott and W F. Elliott, for appellee.
This was a suit by the appellee against the appellant to recover damages for alleged negligence in the appellant causing the death of her intestate, Emmet Early.
A trial of the issues formed upon the complaint resulted in a verdict and judgment against appellant, over its motion for a new trial, for $ 5,000.
The important and controlling question in the case is whether the evidence is sufficient to support the verdict.
It appears that on the 5th day of December, 1887, the decedent was in the employment and service of appellant, in the capacity of a brakeman on one of appellant's freight trains running eastward through the county of Jennings, on appellant's railroad, and while in said employment and service, and in the line of his duty, he was required to couple a part of said freight train to a car standing on a side track of said railroad at Butlerville, in said county of Jennings, loaded with heavy logs, so that the ends projected over and beyond the end of said car, so as to make it necessary for said decedent to stoop down in order to make said coupling, and to get to the place of making said coupling said decedent had to run along by the side of the moving part of said train as it approached said car, and in stooping down to get to said coupling apparatus he was tripped and fell, and the wheels of the moving car ran over him and broke the bones of his leg and lacerated the flesh muscles and veins of his leg so that the blood flowed from said wound in large quantities; that said wounds and flow of blood therefrom was in such quantity that it created a sudden emergency that required the immediate attention and service of a physician and surgeon to treat and dress said wounds and stop said flow of blood; that there were two physicians and surgeons, competent and skillful, residing at, and practicing their profession at, said town of Butlerville.
The uncontroverted evidence shows that the car wheel passed over the decedent's leg below the knee, mashing it and breaking the bones and so mangling it that amputation, had he lived, would have been necessary. The employes of the appellant in charge of the train consisted of a conductor, engineer, fireman, and two brakemen, and the decedent, Early, being one of them, the conductor being the highest in authority of any employe or agent present on that occasion. The fireman was among the first to reach decedent after his injury; the other brakeman and several citizens of Butlerville came at once to lend assistance, and with his leg bleeding all the time he was carried to a shop in the vicinity and placed upon a lounge therein. The conductor being at the caboose, some distance from the place of the accident, a boy who saw it ran to him and told him of it, and as the two were running back the conductor inquired for a surgeon. By this time Early had been picked up and carried to the shop. The conductor asked some of the boys two or three times to run and get a physician, quick, as they were entering the shop with the wounded man. Dr. Nelson, one of the physicians resident in Butlerville, arrived and went into the shop with the crowd. A boy had gone for him, and as soon as he got into the shop the conductor inquired whether he was a surgeon. Dr. Nelson took temporary charge of the case, but he had no surgical instruments. Dr. Kendrick, the only other surgeon in Butlerville, arrived very soon. Up to this time the only employe of the appellant, other than the freight train crew mentioned, that had knowledge of the accident, was the local station agent. Butlerville was not a telegraph station, the nearest telegraph office being Nebraska, four miles east. The train and crew remained about twenty minutes or half an hour after the accident, and being obliged to get their train out of the way of a west bound passenger train, due in a short time, proceeded on east with their train. Early did not want them to leave him there, and begged them not to do so, but the conductor told him they would have to go, and that at Nebraska they would telegraph some one for a doctor. Dr. Nelson had told the conductor that he had not the necessary instruments to perform an amputation, and that amputation would be necessary. The conductor told Dr. Nelson to take care of the patient as good as he could, and he turned and said to Early that he would go on with the train and would telegraph back and send a surgeon there to perform the operation. Early also requested that he should also send his wife, which the conductor promised to do. Dr. Nelson's understanding was that it was to be the appellant's surgeon from Seymour.
Another witness testified that the conductor said he would telegraph to Seymour for Dr. Gerrish. When the crew left, the wound had been bandaged by the doctor, and the flow of blood entirely checked. When the crew reached Nebraska the conductor thereof telegraphed to Seymour that Early had been injured, and to send him assistance at once. The dispatch was to the trainmaster, and the answer received was that the west bound passenger train No. 3, the first train that passed Butlerville after the accident, would stop there. It was due at Butlerville about forty minutes from the time the telegram was sent, but was not a train that regularly stopped there. Butlerville was twenty-three miles from Seymour, and seven miles from North Vernon, the distance from North Vernon to Seymour being fourteen miles. The running time from Butlerville to North Vernon was about ten minutes, and from North Vernon to Seymour twenty-five minutes. Dr. Gerrish lived at Seymour, as did also Early. In the answer to the freight conductor's telegram from Nebraska, nothing was said as to where Early would be taken. A telegram was sent to his wife to come to him, and with this, and the telegram for assistance, the connection of the freight crew with the accident terminated. The only employes of appellant having knowledge of the accident were the local agent and crew of the freight train. At Osgood, a station east of Nebraska, the conductor of passenger train No. 3 received, through the telegraph, orders from the trainmaster to stop and get Early.
Although the fact is not directly stated, the inference is irresistible that the order directed that he be taken to North Vernon.
The conductor, whose evidence is just cited, is the only witness testifying as to the contents of the order, but subsequent events and inferences in other connections show that whatever the passenger conductor or others may have done or intended, the trainmaster did not order or intend that Early be taken to Seymour.
The passenger train reached Butlerville about an hour and a half after the accident, which had occurred between 8 and 9 o'clock in the evening. It seemed to be understood there that...
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