Wright v. Chicago, Indianapolis And Louisville Railway Co.
| Decision Date | 23 May 1911 |
| Docket Number | 6,992 |
| Citation | 95 N.E. 129,47 Ind.App. 673 |
| Parties | WRIGHT, ADMINISTRATRIX, v. CHICAGO, INDIANAPOLIS AND LOUISVILLE RAILWAY COMPANY |
| Court | Indiana Appellate Court |
From Superior Court of Tippecanoe County; Henry H. Vinton, Judge.
Action by Martha Wright, as administratrix of the estate of Perry M Wright, deceased, against the Chicago, Indianapolis and Louisville Railway Company. From a judgment for defendant plaintiff appeals.
Affirmed.
Charles E. Thompson and Wilson & Quinn, for appellant.
E. C Field, H. R. Kurrie and John F. McHugh, for appellee.
Appellant brought this action against appellee to recover damages on account of the alleged negligent killing of her decedent, Perry M. Wright. Issues were formed and submitted to a jury for trial. At the close of appellant's evidence, on motion of appellee, the court, over appellant's objection, instructed the jury to return a verdict in its favor. Appellant's motion for a new trial was overruled, and judgment rendered in accordance with the jury's verdict. The sustaining of appellee's motion peremptorily to instruct the jury, and the overruling of appellant's motion for a new trial are each assigned as error. The only question for decision relates to the giving of said instruction.
The complaint is in two paragraphs. In the first it is shown, in substance, that appellee at the city of LaFayette maintained a switch yard, composed of ten switch tracks, all connected at the south end by a lead track; that decedent, at the time of his death, was a member of a certain switching crew, and under his employment with appellee his work consisted in coupling and uncoupling cars in said switch yard under the direction of the yard foreman, who was a member of said crew; that at the time of and immediately before the accident decedent was assisting in making up a certain train on track No. 1, by uncoupling cars on the various switch tracks and coupling them up again on track No. 1. At the direction of said foreman, decedent uncoupled a cut of five or six cars from a number then standing on track No. 3, and immediately returned to the south end of the cars standing on track No. 1, and began to examine the coupling-pin, draw-bar, knuckle and coupling device on the south car, to see if they were in good condition for service, as was his duty to do under his employment; that while so engaged in this work, which required his whole attention, and required him to occupy a position with his back to the south, the engineer in charge of the switch engine coupled onto said cut of five or six cars, and moved them south along the lead track, past the south end of track No. 1. Then, in obedience to a signal given by said yard foreman, the head brakeman opened the switch leading onto track No. 1, and thereupon said cut of cars and engine were switched over onto said track, and said engineer, in obedience to a signal from said foreman to proceed with the cars, ran them at a high and dangerous rate of speed toward and against the standing cars; that the engineer and said foreman knew at the time said cut of cars was being pushed along said track No. 1 that it was a part of decedent's work to examine and inspect the couplers and other mechanical devices composing them, before coupling them together, and that the decedent was at the time engaged in this work, which required him to be on track No. 1 and between the rails. The foreman at the time of giving said signal, as well as the engineer, was on the east side of track No. 1, which track was straight and unobstructed, and the engineer could, by looking, have seen along the track to a point far beyond the place occupied by decedent, but after said cut of cars was switched over onto track No. 1 decedent could not be seen by said engineer, although said engineer could see along the side of said track far beyond the place where decedent was killed, and could and did see that decedent was not in sight at the time he was running the cars along track No. 1; that all of said cars were equipped with automatic couplers, which, when properly adjusted and arranged for that purpose, and when the cars were of equal height, would couple by impact. The acts of negligence charged are as follows: (1) That the engineer, knowing that decedent was between the rails, and at the south end of the standing cars, negligently and carelessly pushed the cut of cars, taken from track No. 3, toward and against decedent at a high and dangerous rate of speed, to wit, more than seven miles an hour; (2) that said engineer, knowing that said decedent was between the rails of track No. 1, and engaged in the performance of his duties, carelessly and negligently shoved said cut of cars up and against said stationary cars, without receiving a signal from decedent so to do; (3) that the yard foreman, knowing of decedent's position on the track, and the dangerous rate of speed at which the cars were approaching him, carelessly and negligently failed to signal the engineer to stop or slacken the speed of said cars and engine; (4) that the yard foreman, knowing decedent's dangerous position on the track, carelessly and negligently, and without any signals from decedent, signaled the engineer to run the cars attached to said engine against the standing cars, and that decedent was thereby killed; (5) that the yard foreman, knowing the high and dangerous rate of speed at which the cars were approaching decedent, and knowing the dangerous position of decedent in the performance of his duties, carelessly and negligently failed to give him any warning of the approaching cars. The second paragraph is the same as the first, except that the engineer only is charged with negligence.
From the briefs filed in this case, it would seem that the court gave the instruction, of which complaint is made, upon the theory that the evidence failed to show any negligence on the part of the remaining members of the train crew which proximately contributed to the accident.
Plaintiff was entitled to a submission of the question to the jury, unless, after considering all the evidence and resolving all doubts and inferences to be legitimately drawn therefrom in her favor, it could be said that there was no evidence to establish one or more facts essential to her cause of action, in which event the instruction was correct. Gregory v. Cleveland, etc., R. Co. (1887), 112 Ind. 385, 14 N.E. 228; Davis v. Mercer Lumber Co. (1905), 164 Ind. 413, 73 N.E. 899; Pittsburgh, etc., R. Co. v. Cozatt (1907), 39 Ind.App. 682, 79 N.E. 534; Baltimore, etc., R. Co. v. Spaulding (1898), 21 Ind.App. 323, 52 N.E. 410; Cooper v. Merchants', etc., Bank (1900), 25 Ind.App. 341, 57 N.E. 569. We are not unmindful of the rule that it is not a question as to the weight of the evidence, for if there was any evidence, however conflicting, tending to prove the material allegations of appellant's complaint, it would be error to direct a verdict. Messick v. Midland R. Co. (1891), 128 Ind. 81, 27 N.E. 419; Green v. Eden (1900), 24 Ind.App. 583, 56 N.E. 240. But this case is no exception to the rule requiring the plaintiff to allege and prove not only the existence of a duty on the part of the defendant to protect decedent from the particular injury causing his death, but that it failed to perform that duty, and that such failure resulted in his injury and death. For, not until there is some evidence before the jury tending...
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