Vandalia R. Co. v. Stevens

• Decision Date: 23 January 1917
• Docket Number: No. 9069.,9069.
• Citation: 114 N.E. 1001,67 Ind.App. 238
• Parties: VANDALIA R. CO. v. STEVENS.
• Court: Indiana Appellate Court

67 Ind.App. 238

114 N.E. 1001

VANDALIA R. CO.

v.STEVENS.

No. 9069.^*

Appellate Court of Indiana.

Jan. 23, 1917.

Appeal from Circuit Court, Knox County; Benj. M. Willoughby, Judge.

Action by Ira Stevens against the Vandalia Railroad Company. Judgment for plaintiff and defendant appeals. Affirmed.

Clarence B. Kessinger, of Vincennes, and Samuel O. Pickens, Owen Pickens, and John G. Williams, all of Indianapolis, for appellant. William H. Hill, of Vincennes, for appellee.

HOTTEL, J.

This is an appeal from a judgment for $500, recovered by appellee in an action brought by him against appellant to recover for personal injuries alleged to have been sustained by him while on a train operated by appellant, between the mine of the Indian Creek Coal & Mining Company, where appellee was employed as a miner, and the city of Vincennes. The complaint is in one paragraph, and proceeds upon the theory that appellee was a passenger upon appellant's train when injured, and that his injuries were caused by appellant's negligence. A demurrer to the complaint, accompanied by proper memorandum, was overruled, and such ruling is here assigned as error and relied on for reversal.

[1] It is insisted that the averments of the complaint do not show that the relation of passenger and carrier existed between appellant and appellee at the time the latter received the injuries of which he complains. The averments of the complaint necessary to an understanding of such question, and other questions hereinafter considered, are, in substance, as follows: Appellant owned and operated a railroad from Indianapolis to Vincennes, with branch roads or spurs leading off of such main line. One of such spurs left the main line between Bruceville and Bicknell in Knox county, and extended into the Indian Creek coal mine. In operating its main line and branches appellant owned and used thereon a number of locomotive enginesand trains of cars, both freight and passenger, and operated passenger trains thereon drawn by its locomotive engines. On February 29, 1912-

“ plaintiff took passage on one of defendant's said passenger trains upon said road, to be carried to the city of Vincennes, Ind.; that he boarded said train at said Indian Creek coal mine; that for passage over said road from said *** mine to *** Vincennes *** plaintiff was required to pay *** $1.50 per month.” Plaintiff boarded said train at said mine “and entered the passenger coach near the front end *** about 12 feet from the *** stove; *** that the agents of *** defendant set the air brakes on said coach, and then uncouples the engine *** and *** did some switching in and about said mine; that said coach was left standing on a steep grade; *** that by reason of deficient air-brake equipment and deficient air connection the air brakes on said coach became released; that upon the releasing of said air brakes said *** coach and the caboose coupled with it started to *** run down grade. *** Immediately upon the coach starting to run down grade the engine which had been used for switching was, by the agents of *** defendant, run backward toward said *** coach, that said coach and caboose *** collided with *** said engine; that said collision caused *** plaintiff to be thrown *** about 12 or 15 feet to the heating stove *** heated to a red heat,” etc. (Our italics.)

As against a demurrer, the italicized averments, supra, make the complaint sufficient to withstand appellant's said objection. Indiana Union, etc., Co. v. McKinney, 39 Ind. App. 86, 78 N. E. 203;Ohio & M. Ry. Co. v. Craucher, 132 Ind. 275, 31 N. E. 941;Walther v. Southern Pac. Co., 159 Cal. 769, 116 Pac. 51, 53, 37 L. R. A. (N. S.) 235.

We cannot agree with appellant's contention that the effect of such averment is destroyed by the words which follow, showing that appellee was required to pay only $1.50 a month for such passage. The effect of the latter averment is to strengthen, rather than to weaken, the former.

To said complaint the appellant filed an answer in three paragraphs, the first being a general denial.

The second paragraph is predicated on a contract entered into between appellant and the mining company by the terms of which the appellant undertook to contract as a private carrier to carry the employés of said mine from their homes at Vincennes to their place of work at said mine and return, with a proviso to the effect that appellant should not be liable for any damages to any employé on account of injury or death resulting to such employé while on, or getting on or off, appellant's said train, no matter how such injuries were caused. Said paragraph of answer avers that it was under and pursuant to such contract that appellee was on said train when injured; that appellee had paid appellant nothing for his passage; that the $1.50 paid by him, as averred in the complaint, was paid to the mining company toward the expense of running such train, and for the privilege of being carried thereon to and from his work. Said contract is made part of the answer and is as follows:

“Whereas, Indian Creek Coal & Mining Company, a corporation under the laws of the state of Indiana, owns and operates a coal mine located in Knox county, state of Indiana, on the Knox County Coal Branch of the Vincennes Division of the Vandalia railroad; and whereas, said Indian Creek Coal & Mining Company has requested Vandalia Railroad Company, a consolidated corporation organized and existing under the laws of the states of Indiana and Illinois, to furnish said Indian Creek Coal & Mining Company special facilities for getting miners living in the city of Vincennes and the immediate vicinity, and employed by said coal company, to and from said mine; and, whereas, said Vandalia Railroad Company is not a common carrier of passengers for hire over said branch of its Vincennes division, and does not operate any passenger trains thereon, and is not willing to do so; and whereas, said Vandalia Railroad Company is willing, in the capacity of private carrier, but not otherwise, to furnish, upon the terms and conditions hereinafter set forth, said Indian Creek Coal & Mining Company with the facilities desired by it for getting its miners to and from said coal mine; now, therefore, this agreement made and entered into by and between said Vandalia Railroad Company, hereinafter designated Railroad Company, and said Indian Creek Coal & Mining Company, hereinafter designated Mining Company, witnesseth;

“1. In consideration of the premises and of the covenants and agreements hereinafter set forth to be by the Coal Company kept and performed, the Railroad Company in the capacity of a private carrier, and not otherwise, hereby covenants and agrees that it will, as soon as possible after the execution of this agreement, furnish the Coal Company a sufficient number of cars and an engine and train crew to haul and handle the same, and will run such engine and cars as a train of the coal company between said city of Vincennes and said coal mine.

“A blueprint, showing the route of said train between the points named, is hereto attached as an exhibit marked ‘A’, and for the purpose of identification, is signed by the chief engineer of the Railroad Company and by the president of the Coal Company.

“Said cars shall be used by said coal company for the sole purpose of carrying miners employed by the coal company between the said city of Vincennes and its said coal mine.

“The Railroad Company will furnish to the coal company a sufficient number of cars to carry each working day the said miners employed at its said mine and will haul for the coal company said cars in a train, which shall leave the Union Station in said city of Vincennes in the morning of each working day and run to said mine and shall return from said mine to said Union Station in the afternoon of each working day: Provided, always, however, that said train shall not run on any day other than a working day and that said train shall not make more than one round trip each working day.

“2. In consideration of these premises the Coal Company hereby covenants and agrees to pay to the Railroad Company the sum of five hundred dollars ($500) per month for each and every month during the continuance of this agreement, provided, always, however, that if the number of persons on said train to or from said mine on said working day during any month exceeds five hundred (500) the Coal Company will pay to the Railroad Company for that month an additional sum of one dollar ($1.00) for each person so handled in excess of five hundred, and provided further that no reduction for any cause whatever shall in any month be made from said monthly payment of five hundred dollars ($500).

“All sums which the Coal Company hereby agrees to pay to the Railroad Company shall be so paid on or before the fifteenth (15th) day of each month for the preceding month.

“3. As a part of the consideration moving to the Railroad Company for its performance of this agreement and as an express condition thereof the Coal Company agrees that the railroad Company shall not be liable in any event to any one for any damages claimed on account of personal injuries received by any one while being carried in said cars or while boarding said cars or alighting therefrom, nor for any death resulting from such injuries, nor from any loss of or damage to property that may be carried on said cars for said Coal Company, or for any of the miners riding in said cars, even though such injuries, loss or damage be caused by the negligence gross or otherwise, of the Railroad Company or its employés but the Coal Company does not guarantee the non liability of the Railroad Company as above provided.

“4. This agreement may be terminated at any time by either of the parties hereto giving to the other party three months' written notice of its intention to terminate the same.”

The third paragraph of answer contains averments substantially the same as the second,...