Toledo v. Trimble

• Decision Date: 28 November 1893
• Citation: 35 N.E. 716,8 Ind.App. 333
• Court: Indiana Appellate Court
• Parties: TOLEDO, ST. L. & K. C. R. CO. v. TRIMBLE.

8 Ind.App. 333

35 N.E. 716

TOLEDO, ST. L. & K. C. R. CO.

v.TRIMBLE.

Appellate Court of Indiana.

Nov. 28, 1893.

Appeal from circuit court, Clinton county; S. H. Doyal, Judge.

Action by John Trimble against the Toledo, St. Louis & Kansas City Railroad Company to recover damages for the death of plaintiff's son. Verdict and judgment for plaintiff. Defendant appeals. Reversed.

Bayless & Guenther, (Clarence Brown, of counsel,) for appellant. Bristow & Hockman, for appellee.

LOTZ, J.

The appellee's minor son was killed while in the employ of the appellant as a night switchman. This action was brought to recover damages for the loss of his services during his minority. The complaint proceeded upon the theory that the son had been employed by the appellant in a dangerous and hazardous service without the consent of the appellee; that he was inexperienced, and appellant failed to give him proper instructions; and that the son's death resulted from the unskillful and negligent conduct of the engineer in charge of the engine. There was a trial by jury, and a special verdict returned. Several errors are assigned, but the only ones discussed by appellant are the overruling of the motion for judgment in favor of the appellant on the special verdict, and the overruling of the motion for a new trial.

The special verdict is as follows: “First. We find that the defendant is a corporation duly organized under the laws of the state of Indiana, and, as such corporation, is now, and has been for more than two years last past, conducting, managing, a general railroad business between the cities of Toledo, Ohio, and St. Louis, Mo., and controlling and operating locomotive engines, cars, and other property upon the defendant's said railroad. Second. That the railroad track of defendant passes through the county of Clinton and state of Indiana. Third. That as a part of said railway of defendant, and its appurtenances thereunto belonging, the defendant has maintained for more than two years last past, in and adjacent to the city of Frankfort, in said Clinton county, a large yard covered with switches, side tracks, which are used by the defendant for standing cars and general switching purposes, upon which tracks trains are made up by the defendant preparatory to their being transported over the defendant's said railroad, both east and west, from said yard. Fourth. That at and in said yard, and for the purpose of conducting the business thereof, the defendant employed locomotive engines propelled by steam, and crews of employes, one of which crews, for more than two years last past, has attended to such duties of switching from the hour of six o'clock in the evening until six o'clock the next morning, at which time another crew takes charge of such switching work. Fifth. That the said city of Frankfort is, and has been for more than two years last past, a division point in the defendant's said railway system, and at the aforesaid yards all freight trains are rearranged before being transported over the defendant's said railway, both east and west, from said Frankfort and from said yards. Sixth. That, to do said service of said night switching in said yard, it required the services of the said night crew the entire night, and until six o'clock of the following morning, to get the said freight trains ready to move. Seventh. That the work of switching during the nighttime, and the making up of trains during that time, was from April 2 to May 7, 1891, dangerous to the persons of the said night crew, and required skilled and experienced persons to operate the locomotives and shift and switch the cars in said yard. Eighth. That from April 2 to May 7, 1891, in said yard of the defendant, and at the switches and side tracks in said yard adjacent to said defendant's railroad tracks, no lights were kept to aid said night crew in their said work of switching, except the small lanterns carried by the employes engaged in said work, and the headlight of the switching engine. Ninth. That said work of night switching, during said time last aforesaid, was also hazardous and dangerous, in this: That by reason of the short runs made each time in changing the situation of the cars; the sudden starting and stopping of the locomotive and cars attached; the jars caused by the coming together; the constant coupling and uncoupling of the cars, requiring a switchman, each time, to go between the cars; the necessity of switchmen having to ride upon the tops of the cars much of the time during switching,-all of which rendered the employment and duties of night switchmen particularly hazardous and dangerous, and especially so to employes of immature years, and inexperienced in this class of labor. Tenth. That on April 2, 1891, the defendant, without the consent of the plaintiff, employed one Charles C. Trimble, a son of the plaintiff, to serve in said yard of defendant in the capacity of night switchman. That, at the time of said employment of plaintiff's son by defendant, said Charles entered the service of said defendant, and continued in said service until the day of his death, to wit, May 7, 1891. Eleventh. That said Charles, pursuant to the terms of said employment, went on duty as such night switchman with said night crew at six o'clock in the evening of each day, served during the entire night at such work, until six o'clock the next morning except the morning of May 7, 1891. That under said employment, and as a part of the duty of said Charles, he did, during said employment in the nighttime, couple and uncouple cars, open and close switches, and was compelled, in the proper discharge of his duties at such times, to ride upon the tops of the cars. That during the time of such employment, and while said Charles was on duty at said work, said cars were shifted and changed from place to place by means of a locomotive engine propelled by steam. Twelfth. That said Charles, at the time of said employment by defendant, was nineteen years of age, had never served in the capacity of switchman, and was wholly inexperienced to do such duties incumbent upon him in such service with safety to his person. That, at the time said Charles entered the service of the defendant as aforesaid, the defendant had knowledge of his youth and inexperience to perform the duties attending the service of night switchman, but at the time of said employment the defendant failed to instruct said Charles of the dangers attending such service, and failed to give him the necessary instructions as to how to avoid the dangers attending the same. Thirteenth. That on the evening of May 6, 1891, said Charles went on duty in said service as switchman, to serve until six o'clock of the morning of the 7th day of May. That the night switching crew on duty on said night consisted of George Beech, engineer; Alfred Allison, fireman; George V. Keefer and said Charles C. Trimble, switchmen. That the switching locomotive engine used by said crew on said night, and until the following morning at five o'clock, was known as ‘Engine No. 94.’ This engine was at said time owned and operated by the defendant. It was formerly a...