Wabash Railroad Company v. Ray
| Decision Date | 15 November 1898 |
| Docket Number | 17,432 |
| Citation | 51 N.E. 920,152 Ind. 392 |
| Parties | The Wabash Railroad Company v. Ray, Administatrix |
| Court | Indiana Supreme Court |
Rehearing Denied April 5, 1899.
From the Whitley Circuit Court.
Reversed.
A. A Adams and Stuart Bros. & Hammond, for appellant.
Ninde & Ninde, for appellee.
The appellant railroad company owned and operated as one of its branches a railroad extending from the city of Detroit Michigan, through Columbia City, Indiana, to the city of Peru, in the latter State. Appellee is the administratrix of William O. Ray, deceased, who was at and prior to his death in the employ of appellant as a brakeman on one of its local freight trains. He was accidentally killed while coupling cars at Columbia City, by catching his foot in an unblocked guard-rail, and while in such condition was run over by the car which he was attempting to couple.
To recover for this alleged negligent killing, the appellee successfully prosecuted this action in the lower court, and, upon a special verdict by the jury, obtained a judgment for $ 5,000. The alleged errors of which appellant complains, in the main, are based upon the decision of the court in overruling a demurrer to the amended complaint, and in denying its motion for a judgment upon the special verdict of the jury, and in overruling its motion for a new trial.
We may, at least for the present, pass the consideration of the sufficiency of the complaint, for the reason that substantially the same facts, and the same theory thereunder, are disclosed by the special verdict, and if we can hold that, under the facts therein found, appellee is entitled to a judgment, such holding will certainly result in sustaining the complaint. Counsel for appellant earnestly insist that their motion for a judgment in favor of appellant, upon the special verdict, ought to have been sustained. Preliminary to the consideration of this insistence, we may properly refer to some familiar and well settled rules applicable to a special verdict, one of which is that it is the very essence of such a verdict that it state all the material facts within the issues of the case, and no omission of a fact therein can be supplied by intendment. Its failure to find a fact in favor of the party upon whom the burden of establishing it rests is the equivalent of an express finding against him as to such fact. When the party having the onus in a case asks a judgment upon a special verdict, the material facts therein found, within the issues, must establish his right, under the law, to a judgment, otherwise he must fail in his demand; but where, as in this case, the moving party is not the one upon whom the burden of the issue rests, his right to be awarded a judgment does not depend alone upon the presence of material facts, but he may be entitled to the judgment by reason of the absence of some essential fact which it was incumbent upon his adversary to establish.
The jury, therefore, being required in their special verdict to find facts, mere conclusions, surmises, and evidence, have no legitimate place therein and are entitled to no consideration by the court. Cook v. McNaughton, 128 Ind. 410, 24 N.E. 361; Cleveland, etc., R. Co. v. Miller, Adm., 149 Ind. 490, 49 N.E. 445.
It may be said that the verdict in this case is open to the objection that the jury, in several instances, stated their own conclusions and conjectures; eliminating these, however, as we must, the material facts embraced therein, and necessary to the solution of the question presented by counsel, may be summed up and stated as follows: Appellee's decedent was, at the time of his death, a skilful railroad brakeman, thirty years old, sound in body, and in good health. At the time of the fatal accident, he was in the employ of the appellant as a brakeman on one of its local freight trains, which ran over its road between the town of Butler and the city of Peru. His said employment as brakeman by appellant began on February 9, 1893, and he continued to serve as such brakeman on the train above mentioned until the time of his death, on March 14, 1893. During that period he ran on said train each day, except Sunday, over the road as follows: One day he would run from the town of Butler, through Columbia City, to Peru, and the next day, he would return with his train over the same route from Peru to Butler.
The defendant for more than two months prior to March 14, 1893, maintained a certain spur-switch and side-track in Columbia City, which switch branched off from the main track of the railroad about fifty feet east of the point where said track crossed Main street, in Columbia City. This switch extended westward from its junction with the main track for a distance of 400 feet. The south rail of this switch was about seven feet and nine inches north of the north rail of the main track where it crossed Main street, and the main track of the switch crossed this street nearly at a right angle. Main street, in Columbia City, including its sidewalks, is eighty feet wide, and the east line of this street is fifty feet west of the junction of the main track of the railroad.
Two months and more prior to the death of the deceased, appellant placed and maintained two guard-rails, for a distance of forty-five feet, across said street. The east and west ends of these guard-rails were about the same distance from the east and west boundaries of this street. One of these guard-rails was placed and maintained two and three-eighths inches from the north rail of the switch, and the other the same distance from the south rail, and these guard-rails were so placed between the rails of the switch that each was bent, and flared out from the main rails of the track, until the ends thereof were about fourteen inches from the main rail of the switch. The opening of the east end of the south guard-rail is described in the special verdict as follows: "That the east end of said south guard-rail commenced to separate from the south rail of said track about nine feet from the end thereof, and continued to curve away from the south rail of said track till the east end thereof was seventeen inches from said south rail as aforesaid; that said curve in said guard-rail made a wedge-shaped space between the south rail of said switch and the bent portion of said guard-rail, which, at the point where said guard-rail commenced to recede from said south rail, was two and three-eights inches wide, and which space continued to widen as said guard-rail continued to leave the main rail until it was seventeen inches wide at the end of said guard-rail." The wedge-shaped space between these rails was unblocked, and the verdict states that for this reason it was "extra hazardous" for the decedent, and other employes of the defendant, to couple and uncouple cars moving westward over this open space, for the reason that they were liable, when so engaged, to step into said opening, and thereby cause one of their feet to become wedged and fastened therein so that it could not be withdrawn until such employe would be run over and killed by the car which he was coupling. The verdict states that this space, or opening, could have been prevented by blocking it as follows: "By a wooden block about sixteen inches long and two inches thick, cut in a wedge-shape so that the point would be two inches wide, and then widen as fast as said rail spread;" that such blocking would have prevented a brakeman's foot from passing under the rails, and becoming fastened.
It is further stated in the verdict that the defendant, long prior to the time it employed the deceased, had properly blocked all of its frogs, switches, and guard-rails at said switches, and that the deceased, during the time of his employment up to his death, "saw and knew" that said switches, frogs, and guard-rails were blocked, and safe to pass over. It is then stated that the defendant, carelessly and negligently, and without due caution and care for the safety of the deceased, in operating its train, and in coupling and uncoupling its cars over said switch and over said guard-rails at the crossing of said Main street, failed and neglected to block said space, or opening, between said guard-rails and said south rail, as above described; and that on said 14th day of March, 1893, the deceased was carefully, and in the due performance of his duty, engaged in coupling cars on said spur-switch on and over said open space between said guard-rail and the south rail of said track, and on and over the crossing of said Main street. As he was so carefully engaged in coupling cars, and moving westward between the cars, and over said space or opening, he stepped into said opening, whereby his left foot became wedged and fastened between said rails so that it became then and there impossible for him to withdraw his foot, and, while it was so held, the car that he was coupling, ran over him and then and there killed him, without any fault on his part.
The verdict then proceeds as follows: ...
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