Rehearing denied March 14, 1913.
From
Starke Circuit Court; Francis J. Vurpillat, Judge.
Action
by Mary E. Foust, administratrix of the estate of Samuel A
Foust, deceased, against The Pittsburgh, Cincinnati, Chicago
and St. Louis Railway Company. From a judgment for plaintiff
the defendant appeals.
Reversed.
OPINION
ADAMS, P. J.
Appellee's
decedent was killed on January 21, 1907, at or near the town
of North Judson, Indiana, being run over by a car operated by
appellant's servants on appellant's railroad. After
the usual formal averments, the amended complaint states in
detail the location of appellant's tracks and buildings,
the location of street and railroad crossings, estimates the
number of people using the crossings, and grounds, and
proceeds: "That 300 feet north from the north end of the
platform of said defendant's passenger station is located
the tower and signal house of said defendant's road, and
the railroads there that cross it. That previous to the date
aforesaid, said defendant had contracted with the Union
Switch and Signal Company, to construct and install about,
over and upon its tracks, at said town, a system of
interlocking devices for use in the operation of its said
railroad, and had licensed said Union Switch and Signal
Company and its employes to go upon and about said tracks in
carrying on the work of constructing and installing said
interlocking devices. That the decedent received his injury
at the hour of 11:25 a. m. on the date before mentioned, and
at the time of receiving it he was an employe of said Union
Switch and Signal Company, working along with fifty other
laborers, in the construction and installation of said
interlocking works, the place where they were carrying on
their work being upon said defendant's main tracks,
between the north end of the platform of the defendant's
passenger station and said tower house, and his and their
duties, as such laborers required him and them to be upon and
about said defendant's main railroad tracks at the place
where said work was being carried on, and where he received
his injuries, and he was there at the place where he was
injured by the invitation of said defendant, and with the
full knowledge of the said defendant, and its servants and
agents, engaged in the operation of its cars
and engines, through and in said town of North Judson, and
over and upon the tracks where said interlocking works were
being installed. That while being at the place above
mentioned in carrying on the work that his duties required,
the said decedent was exercising due care and diligence for
his own safety, and to avoid injury to himself, from the
passage and running of cars and engines, on and about the
tracks at which he was at work, but notwithstanding his
exercise of care, he was, without his own fault, run over and
crushed by one of said defendant's freight cars, his
death resulting from being so crushed, said car being part of
a local freight train which was negligently and carelessly
managed and operated by said defendant's servants in
charge thereof, in an attempt by them to make what is termed
in railroading a 'flying switch' that in attempting
to make such 'flying switch' they detached four
freight cars from a local freight train of cars, under their
care, and with an engine attached to said four cars backed
the same at a rapid and reckless rate of speed upon one of
the two main tracks at precisely the same moment of time that
a through freight train was passing on the other parallel
main track of said defendant's railroad. That said
decedent seeing said through freight train moving toward him,
and to escape injury from it, passed from the main track on
which it was coming, and on which he was then at work, over
to said other main track, on which said freight cars of said
local freight train were being backed, that being the only
place to which he could then go to get out of the way of and
to escape injury from said moving through freight train; that
in so passing over from one track to
the other, his back was in the direction from which said
backing cars were coming toward him, he at the time of so
passing over to said track not knowing and having no means
whatever of knowing or ascertaining, that any cars were being
backed upon said track, or any reason to suspect or believe
that they would be so backed, or that said
track was not clear, and not being in a position in which he
could see, hear or know that they were being so backed. That
no flagman or other person was upon or about said backing
cars, or upon the track upon which they were being backed to
give any notice, warning or signal of their approach, nor was
any notice, warning or signal of their approach given. The
plaintiff avers that the act of making 'flying
switch' within the corporate limits of said town was,
because of the facts hereinbefore stated, at all times one of
great danger to human life, and was particularly so at the
time and place and under the circumstances hereinbefore
stated, and was entirely unnecessary and wrongful in the
operation of said defendant's railroad through said town,
and the act of so backing said cars at said time and place,
in an attempt to make such 'flying switch' and the
omission to give any warning or signal by the persons in
charge of said car, of their intention to make such switch,
were all acts of negligence, all contributing and concurring
to cause, and did cause said decedent's injury and death,
he himself being entirely without fault and exercising due
care to avoid such injury."
To this
complaint the appellant filed a demurrer for want of
sufficient facts, which demurrer was overruled by the court,
and the cause put at issue by an answer in denial. Trial by
jury, and verdict returned for appellee. Appellant's
motion for a new trial was overruled by the court, and
judgment rendered on the verdict. Errors assigned and relied
upon for reversal are: (1) error of the court in overruling
the appellant's demurrer to the amended complaint; (2)
error of the court in overruling appellant's motion for a
new trial. We will consider the errors in the order of their
assignment.
The
sufficiency of the complaint in this case, as well as in all
cases involving actionable negligence, may be determined by
the following tests: Do the facts alleged show a legal duty
owing by the defendant to protect the
plaintiff at the time and place of the injury of which
complaint is made? Do the facts show a breach of that duty by
the defendant? And do the facts further show an injury
arising out of such breach? If all of these elements are
brought together by proper averments, they constitute
actionable negligence. But the absence of any one renders the
complaint bad. A casual reading of the complaint under
consideration will disclose a notable absence of direct...
