The Southern Indiana Railway Co. v. Martin

• Decision Date: 19 March 1903
• Docket Number: 20,024
• Citation: 66 N.E. 886,160 Ind. 280
• Parties: The Southern Indiana Railway Company v. Martin
• Court: Indiana Supreme Court

66 N.E. 886

160 Ind. 280

The Southern Indiana Railway Company v. Martin

No. 20,024

Supreme Court of Indiana

March 19, 1903

From Orange Circuit Court; T. B. Buskirk, Judge.

Action by Thomas Martin against the Southern Indiana Railway Company. From a judgment for plaintiff, defendant appeals. Transferred from the Appellate Court, under § 1337u Burns 1901.

Reversed.

T. J Brooks, W. F. Brooks and F. M. Trissal, for appellant.

J. R East, R. H. East and McHenry Owen, for appellee.

OPINION

Gillett, J.

This is a suit for personal injuries instituted by appellee against appellant in the Lawrence Circuit Court. The venue was twice changed--first to the Jackson Circuit Court, and then to the court below, where there was a verdict and judgment for appellee.

By a proper assignment of error, appellant challenges the ruling of the Lawrence Circuit Court in overruling a demurrer to the original or first paragraph of complaint. It is claimed by appellee that said paragraph is not in the record. The caption of the transcript of the clerk of the Orange Circuit Court recites that on the 27th day of September, 1900, the defendant filed in the office of said clerk the transcripts of the proceedings in said cause in the circuit courts of Lawrence and Jackson counties, and also the papers and files to said cause, "which transcripts and files," he states, "are as follows, to wit:" The transcript of the clerk of the Lawrence Circuit Court, containing what purports to be not only the proceedings, but also the copies of the files in said cause, is then set out. The certificate of the clerk of the latter court, however, does not authenticate anything beyond the proceedings in that court. There is next exhibited in the transcript what purports to be a transcript of the proceedings in the Jackson Circuit Court, duly certified. Appellant's precipe, that was filed with the clerk of the court below, called for the preparation of a transcript containing not only copies of the transcripts of the proceedings in the Lawrence and Jackson Circuit Courts, but also of "the complaint and the additional paragraph of complaint." In his certificate attached to the record in this cause, said clerk certifies, among other things, that it contains full, true, and complete copies of said transcripts, and of the complaint and additional paragraph of complaint.

The clerk of a circuit or superior court, when a change of venue is taken under § 417 Burns 1901, is not required to do more than to 'transmit all the papers and a transcript of all the proceedings to the clerk of the court of the county to which the venue is changed," and the latter is then required to receive and receipt for such papers and transcript. The identity of the original papers does not depend upon a certificate of the clerk of the court from which the change is taken, but upon the fact that they are transmitted by him with a transcript of the proceedings. It therefore appears that it was the duty of the clerk below to copy the paragraph of complaint in question into his transcript, as one of the original papers received by him. This he did not do. As it clearly appears, however, from his certificate, that the record now before this court does contain a full, true, and complete copy of said original complaint, it is our judgment that we should treat the copy of the complaint set out in the copy of the transcript made on a change of the venue from Lawrence county as a sufficiently certified copy of the original or first paragraph of complaint. Otherwise stated, the clerk of the Lawrence Circuit Court, while he copied the complaint into his transcript, only certified to the proceedings, but the clerk of the court below authenticates the complaint set out in the Lawrence county transcript by his reference to it in the caption of the principal record and by his final certificate.

Said paragraph of complaint is as follows: "The plaintiff Thomas Martin, complaints of the defendant and says: That heretofore, to wit, on the 11th day of April, 1899, the defendant was, and for a long time prior thereto had been, a corporation duly organized and doing business under the laws of the State of Indiana, and had a track, engines, and cars extending from Bedford, Indiana, to a place called Salt Creek, in Lawrence county, in said State; that on said 11th day of April, 1899, this plaintiff, with many other persons, were employes of the defendant and engaged in loading, unloading, and hauling stone on defendant's train used for that purpose, and were all in charge of one George Mathieu, the defendant's manager of said train and work, and who had full charge and management of said train and work done therewith; that said Mathieu was also the foreman of the defendant and in charge of its work in hauling and loading and unloading stone, and was its vice-principal and representative; that so to haul, load, and unload said stone a wire cable or rope was used to remove the stones from flat cars; that said cable was 150 feet long and three-fourths inch in diameter; that on said date the defendant had taken two flat cars loaded with stone to a point called Salt Creek, some three or four miles west of Bedford, and was returning with the empty cars, and a number of defendant's employes, including the plaintiff, were riding eastward on said cars and the said cable so made of wire was lying on the second flat car forward,--said cars being pushed eastward; that while said cars were being shoved or pushed eastward, and while said rope was so coiled up on the forward flat car, and while said cars were in motion, and running at the rate of twenty miles per hour, as aforesaid, the said George Mathieu, foreman and manager of said train, ordered and directed this plaintiff and others of its employes to straighten and take the kinks out of said cable and to take one end of the same westward to the engine pushing said cars, and ordered and directed this plaintiff to take hold of and manage the uncoiling of said cable, all of which orders were given while said cars were so running as aforesaid; that this plaintiff and others of the employes of the defendant obeyed said order, and the said George Mathieu, in person, ordered and directed said cable rope to be taken over the coupling of the first and second flat cars so in motion, and going eastward, and that said order and command was negligently given, in this, to wit: That the said Mathieu failed to place any one of the defendant's employes at the connection of the two flat cars, and failed to direct any one of its employes to hold said cable rope up so as not to allow it to drop through between said flat cars and catch on the ties of defendant's track and suddenly and quickly uncoil itself with such speed and force as to injure the defendant's employes, and especially this plaintiff; that the said George Mathieu knew that it would endanger the employes of the defendant so to uncoil said rope by allowing it to drop through between said flat cars, and to fail to place a person at said point to hold said rope up so that the same would not drop through said space between said cars; that the defendant through its said foreman and manager, George Mathieu, in giving the said order to take one end of said cable back to the engine, and in giving this plaintiff orders so to uncoil said cable and assist in taking the kinks out of the same, and moving and having moved the said cable over the space between said flat cars, without placing a man there to prevent said cable from falling through the space between said cars, was careless and negligent, for the reason that he knew, or should have known by the exercise of reasonable care, that in so doing the said cable was liable to drop through the space existing between said flat cars, and drag on the ground until it caught on a cross-tie, or till it was caught by a car wheel, or fastened by some object, and then suddenly straighten out and jerk suddenly against the plaintiff and other employes with such force as greatly to injure them; that on said 11th day of April, 1899, while the plaintiff was so employed by the defendant at the sum of $ 1.25 per day, and while he was in the line of his duty, and while obeying the order of said George Mathieu as aforesaid, and while unable to see the condition of said cable at the point it passed over the space between said flat cars,--said space being at his back and not discoverable from the position he was in,--and having no knowledge that any danger existed from the order so given, the said cable being carelessly allowed by said defendant, through said George Mathieu, while said train was so running at great speed, to drop through an open space to the ground and track, among the cross-ties and beneath the revolving wheels of said freight-cars so in...