Toledo, St. Louis And Kansas City Railroad Company v. Hauck

• Decision Date: 28 November 1893
• Docket Number: 948
• Citation: 35 N.E. 573,8 Ind.App. 367
• Parties: THE TOLEDO, ST. LOUIS AND KANSAS CITY RAILROAD COMPANY v. HAUCK
• Court: Indiana Appellate Court

35 N.E. 573

8 Ind.App. 367

THE TOLEDO, ST. LOUIS AND KANSAS CITY RAILROAD COMPANY v. HAUCK

No. 948

Court of Appeals of Indiana

November 28, 1893

From the Grant Circuit Court.

Judgment affirmed.

S. O Bayless and C. G. Guenther, for appellant.

W Stephenson, H. Brownlee and H. J. Paulus, for appellee.

OPINION

REINHARD, J.

The appellant has assigned numerous errors, but we shall notice such only as are discussed in the supersedeas brief of counsel, which is the only one filed by them.

The action was brought to recover damages for a personal injury sustained by the appellee through the alleged negligence of the appellant while appellee was loading some household goods to be carried upon a freight car set apart to the appellee for that purpose by the agents of the appellant. It is claimed, in argument, on behalf of appellant, that the special verdict of the jury, when purged of mere evidentiary facts and legal conclusions, is insufficient to show culpable negligence on the part of appellant and freedom from contributory fault on the part of appellee, and that the court consequently erred in overruling the appellant's motion for judgment in its favor upon the special verdict.

From the facts found, it appears, in substance, that the appellant was, at the time of the alleged grievances, a common carrier of goods and freight, for hire, over a line of railroad operated by it, the main track of which ran through the town of Swayzee, in Grant county, Indiana, where the appellant maintained a station, switch and side track for the use and convenience of persons receiving and transporting freight, which station and the business connected therewith were under the management and direction of a station agent of the appellant; that the side track at the point mentioned branched off from the main track, running east and west on the north side thereof, running for a distance of 1,000 feet or more, where it again joined the main track, and was so constructed and arranged that the cars and engines could pass from the main track over and upon the side track from either the east or west end thereof; that the appellee, who resided in the town of Swayzee, desired to have transferred and carried by the appellant, over the line of its railroad, from the said town to a point east thereof on said line, certain household goods and furniture belonging to her, and for that purpose, on the 13th day of May, 1890, called upon the appellant's said station agent at said place, and informed him of her desire to ship said goods, and requested him to have a car placed upon said side track, in which to load such goods, which said agent then agreed to do, and, on the 16th day of May, 1890, he caused to be placed upon said side track, at said town, at a point a short distance east of the station building, a box car completely and tightly closed at the sides, ends, bottom and top, with an open doorway on the north; and, on the evening of the day last named, informed appellee of the arrival of the car and directed her to place her goods therein for shipment without any unnecessary delay, whereupon, on the same evening, the appellee placed a portion of such goods in said car, placing the remainder therein the next day; that with the assistance of others and with her own hands, and with the knowledge and consent of such agent, she placed the goods in said car through the open door on the north side thereof; that in order to protect the goods from injury and damage while in transit, it was necessary that many articles be wrapped with cloth, carpet, and other material, and that the same be stored in proper position in the car, and for this purpose, and with the knowledge and consent of the station agent, she went into the car and began the work of wrapping and arranging such goods; that while appellee was in said car and so engaged, one of appellant's east-bound freight trains was drawn along and upon the main track, to or near said station, and, after a short stop, the agent and employes of the appellant in charge of such train caused the same to be run at a rapid speed on its way east and along and upon said main track, passing the car in which appellee was so engaged, until the rear car passed the east end of the side track, when its movement was reversed, and it was backed into and upon the side track westwardly to such a distance and with such speed and force as that it struck said car with such violence as to move it suddenly a distance of four feet or more; that when said train so left the station, going eastwardly, and when it was so backed in upon the side track, the said station agent knew that all the goods of the appellee were not in said car ready for shipment, and so believing and knowing, said agent failed and neglected to so inform the agents and employes of the appellant in charge of the train; that such train, after passing such car, and before it reached the east end of the side track, was so far away that its movements could not be and were not heard by the appellee in said inclosed box car, and that the appellee had no knowledge that her goods and car were to be taken from the side track by said train, or that the train would be backed in upon the side track, and there was no other car or cars than the one already mentioned, on such side track before and at the time the said train was so backed upon the same; that when the train passed the car going east the appellee was in the closed box car engaged as aforesaid, and was not able to see said train, and was unable to know its movements after it passed the car going east and beyond her hearing, and that she, having no knowledge that her goods were to be taken by said train, or that the same would be run upon the side track, and knowing as she did that the station agent knew of her being in and about said car, and that the same was not ready for removal, she had reason to believe, and in good faith did believe, and so believing did rely thereon, that said train, after its movement beyond her hearing, had continued on its way eastward, and so believing, and being wholly ignorant that said train would be backed upon the side track and against said car, thereby endangering her life and limb, she remained in said car placing and arranging her goods as aforesaid, and was so engaged when said car was struck as aforesaid; that being in said car without any warning of the approach of said train, or of the danger threatening her, she was, by the said movement of the car, caused by the same being violently struck by the train, thrown violently out of and from said car, through said doorway, to and upon the ground or such obstruction as may have been there, and by such fall she sustained the injuries complained of, which are more minutely described in the verdict.

It is further found, that in order to get into the car the appellee had placed a board about ten feet long and eight inches wide with one end upon the ground and the other in the iron stirrup under the open door of the car, and then placed a chair upon the ground at the side...