The Pittsburgh, Cincinnati And St. Louis Railway Co. v. Adams

• Decision Date: 10 February 1886
• Docket Number: 11,378
• Parties: The Pittsburgh, Cincinnati and St. Louis Railway Company v. Adams
• Court: Indiana Supreme Court

5 N.E. 187

105 Ind. 151

The Pittsburgh, Cincinnati and St. Louis Railway Company v. Adams

No. 11,378

Supreme Court of Indiana

February 10, 1886

From the Miami Circuit Court.

The judgment is reversed, with costs, and the cause remanded with instructions to the court to sustain appellant's motion for a venire de novo, and his motion for a rule upon appellee to make his complaint more certain and specific.

N. O Ross, for appellant.

J. L Farrar, J. Farrar, W. C. Farrar, A. C. Harris and W. H Calkins, for appellee.

OPINION

Zollars, J.

Appellee brought this action to recover damages resulting from a personal injury received upon appellant's road. The following, partly a summary, and partly a copy, is as much of the complaint as needs to be set out, viz.:

In 1881, appellee, then under twenty-one years of age, was in the employ of appellant as a section hand, and in no other or different capacity. While thus employed, he was "ordered by Patrick Clary, a person standing towards plaintiff in the relation of superior in the employ of defendant," to get upon and go with a construction train, and perform such service as might be required of him. The construction train was sent out for the purpose of gathering up iron along the track. "In obedience to said order, though totally unacquainted with the business of coupling cars, braking, or the general method or order of running trains, * * except as a section hand," appellee went upon the train. There were not upon the train the usual and necessary number of brakemen to manage and control it. While upon the train, appellee was "ordered by said Patrick Clary, his superior in authority in defendant's employ as aforesaid, to act as brakeman at the rear end of the train, a business for which he was not hired, and of and about which he knew nothing." He obeyed the order, and while so acting as brakeman it became necessary to couple other cars to the rear end of the train. Being at the rear end of the train, and after it was upon a side-track to let other trains pass, he "was ordered by Thomas Courtney, in the employ of defendant, and standing toward plaintiff in the relation of superior, to do said coupling. While performing said coupling as ordered by his said superior in service, and as in duty bound to do, without fault or negligence on his part, the bottom of plaintiff's pantaloons upon his right leg was pierced by a sharp piece of iron negligently left by defendant projecting from the rail of defendant's said road, which defendant at said place had negligently and carelessly suffered to get and remain out of repair; said iron, after passing through the leg of plaintiff's pantaloons, entered the shoe upon plaintiff's right foot and held him fast, and before he could extricate his * * foot, and without fault or negligence upon his part, the wheels of the train and cars he was coupling ran upon and over the said right foot of plaintiff, crushing, mangling and bruising said foot and the ankle, rendering amputation necessary," etc.

The foregoing statement is an abbreviation of the second paragraph of the complaint. The first paragraph is substantially the same, except that the coupling is alleged to have been a duty resulting from the position of brakeman, and there is no averment that appellee received specific orders from any one to make the coupling.

Appellant moved for a rule upon appellee to make his complaint more specific and certain, so as to show the position in its service, and the relation to it and to appellee, occupied by Clary and Courtney, the persons alleged to have given the orders to appellee. We shall see during the course of this opinion that this motion should have been sustained.

It is assigned as error that the court below erred in overruling appellant's demurrer to the complaint.

The contention on the part of appellant's counsel, amongst other things, is, that it is not alleged that appellant knew, or with reasonable care might have known, of the unsafe condition of the rail, and that it is not alleged that appellee did not know, or with reasonable care might not have known, that the rail was in an unsafe condition. Upon the hypothesis that the gravamen of the action is alone the negligence of appellant in connection with the rail, and that to constitute negligence in that regard it is essential that appellant knew, or with reasonable care might have known, of its unsafe condition, still, the general averment that appellant negligently left the sliver or splint projecting from the rail, is sufficient under many decisions of this court. Cleveland, etc., R. W. Co. v. Wynant, 100 Ind. 160, and cases there cited. And so, too, in relation to the general averment that appellee was without fault or negligence.

Whether or not these former rulings are in entire consonance with the provisions of the code upon the subject of pleading we need not now inquire. They have been so long adhered to as to become the settled law of the State.

The jury returned the following special verdict, upon which judgment for $ 7,000 was rendered against appellant and in favor of appellee, viz.:

"The defendant, the Pittsburgh, Cincinnati and St Louis Railway Company, was, on the 9th day of June, 1881, and long previous thereto, a corporation organized and doing business under the laws of the State of Indiana, and operating a line of railroad through the counties of Grant and Miami in said State of Indiana.

"2. That, on June 9th, 1881, plaintiff was a minor under the age of twenty-one years, over the age of twenty years, and was employed by the defendant as a section hand to work repairing the track of defendant's said railroad.

"3. Plaintiff was so employed to work for defendant without the consent of his mother.

"4. When plaintiff was so hired to work as a section hand on defendant's road, his father was not living.

"5. On June 9th, 1881, plaintiff was ordered by defendant's section boss having charge of the section from Bunker Hill to McGrawsville, one Patrick Clary, to go upon defendant's construction train at Bunker Hill, Indiana, and plaintiff did go upon said train as ordered.

"6. Plaintiff went from Bunker Hill on said day, under direction of defendant's agents and employees, to Upland, in Grant county, Indiana.

"7. Plaintiff, previous to June 9th, 1881, had never performed the duties of brakeman, and he had never coupled cars attached to an engine.

"8. Plaintiff, while so on said train at Upland, on June 9th, 1881, was ordered by defendant's agent and plaintiff's superior in authority, to go to the rear of said construction train and act as brakeman thereon, and plaintiff obeyed said order.

"9. While so on the rear end of said train as brakeman, it was plaintiff's duty to couple cars of said construction train on which he was working.

"10. Plaintiff was ordered while at Upland by an agent of defendant, and a superior in authority to plaintiff, to couple some cars to said construction train. He attempted to couple said cars, and while so attempting to couple said cars he was injured by the cars of said construction train, and his right leg was so badly crushed that amputation became and was necessary.

"11. At Upland, on said June 9th, 1881, while so attempting to couple cars on said train upon which plaintiff was working, and when he received said injury, he was, when so injured, exercising reasonable care in coupling said cars.

"12. That plaintiff, on said day, while so as aforesaid attempting to couple said cars, exercised such care as might reasonably have been expected of him, considering his youth and inexperience.

"13. While so attempting to couple said cars at Upland, on said 9th day of June, 1881, plaintiff's foot was caught by an iron sliver or splinter on one of the rails of defendant's switch, and held there until struck by the car wheel of said construction train, and his leg was then and there run over by said car wheel and crushed, so that amputation became and was necessary, and plaintiff thereby lost his right leg.

"14. We further find, that while the train upon which plaintiff was ordered by defendant to go, and did go to Upland, was standing upon the side-track, a part of defendant's railway at Upland, in Grant county, Indiana, on June 9th, 1881, the plaintiff was ordered, by an employee of defendant and superior to plaintiff in authority on said railway, to make the coupling of certain cars attached to the locomotive of the train on which plaintiff was working; that in attempting to obey said order to couple said cars, without fault or negligence on his part, the said cars ran upon and over his right leg, and so injured the same that amputation became necessary; and we further find that the defendant was on the cars and train upon which plaintiff was working at said time at Upland when he so lost his leg, in the person of Andrew Mertens, supervisor of and on said road. We do further find, that at the time plaintiff was ordered to go on defendant's construction train at Bunker Hill, on June 9th, 1881, he was under the age of twenty-one years and over twenty years; that he had no experience whatever in railroading, except as a section hand; that defendant ordered him to couple cars at Upland on said day, and that he did make the attempt as ordered, and, without fault on his part, was injured and lost his leg thereby, and that neither defendant nor any one of her employees had explained, or did explain, to plaintiff, or caution him of the hazard or danger incident to braking on said train or coupling cars, and that neither the defendant nor any one of her employees had explained to plaintiff, or instructed him how to avoid, the danger incident to such business.

"15. We find that the defendant was careless and negligent in allowing...