156 Ind. 364 | Ind. | 1901
Appellee as the administratrix of Frank Peterson, her deceased husband, instituted this action to recover damages on account of his alleged negligent killing by appellant. A trial in the lower court before a jury resulted in a verdict being awarded her for $1,500, and over appellant’s motion for a new trial judgment was rendered for this amount. Appellant under its assignment of errors contends: (1) That the second paragraph of the complaint upon which, as the record discloses and the parties concede, the judgment in question is based, is insufficient on demurrer; (2) that the court erred in giving and -refusing certain instructions, and (3) that the evidence is not sufficient to support the judgment. Among other material matters, the second paragraph of the complaint sets out the following facts: Appellee’s decedent on and prior to January 18,1897, was an employe of the appellant, the railway company, whose railroad runs through the city of Washington, Daviess county, Indiana, in which city said railroad company owns and Operates in connection with its railroad a switch yard. On said 18th day of January, and for some years prior thereto, an ordinance adopted by the common council of said city of Washington was in full force and effect. Two of its sections, five and ten, which have a bearing on the things alleged in the complaint, are set-out and embodied therein and are as follows: “Section 5- That it- shall be the duty of every locomotive engineer, conductor, or other person or persons engaged in running any locomotive within said city to ring the bell attached to such locomotive whenever the same shall be moving in or through said city or any part thereof. Section 10. No locomotive engineer, conductor, or other person managing or controlling any locomotive engine, car or cars, or train of cars,
Counsel for appellant contend that the complaint'is predicated upon the theory that at the time appellee’s decedent sustained the fatal injury by being run over as alleged, that appellant was handling its cars in violation of the provi
The contention is further advanced that the common council of a city , under this provision of the statute is. limited to the regulation of trains running through such city, and is not empowered to regulate the manner of handling or operating or running locomotive engines and- cars in or through the yards of a railroad company, and that any attempt to exercise such power, it is claimed, will be invalid. The complaint discloses that the switch yard in question is situated within the limits of the city, of Washington, and is used by appellant in connection with the operation of its
Such ordinance, when authorized to be adopted by a municipal corporation, has the force and effect of a statute enacted by the legislature. Swindell v. State, 143 Ind. 153, 35 L. R. A. 50, and cases cited.
In the appeal of Cincinnati, etc., R. Co. v. Long, supra, the fatal accident was charged to be due to the negligence of the railway company, through its servants, in backing a locomotive engine and certain cars under their control, over and upon the deceásed who was engaged in switching cars at the Union Switch Yards in the city of Indianapolis. ' The complaint in that case charged that the railroad company backed the engine and cars in question without giving deceased warning of their ¿pproach and in violation of the provisions of an ordinance adopted by that city. The sections of the ordinance involved in that appeal were substantially the same as those now in question. By the ordinance in that case it was made the duty of every engineer, conductor, or other person running a locomotive engine, to ring the bell attached thereto whenever such engine should be moving through the city. It was also made unlawful to'run any locomotive or train of cars backward in or through the city, without having a watchman on the rear end of the train, in order to avoid accidents. This court, per Mitchell, J., in that appeal said: “The appellant owed the duty of operating its train in careful compliance with the city ordinance, and with a due regard for the safety of all those
In Pittsburgh, etc., R. Co. v. Moore, Adm., 152 Ind. 345, the action- was based upon the fourth clause of - the employers’ liability.-act,. .§7083 Burns 1894. This section provides that every railroad corporation, “operating in this State, shall.be-liable for damages .for personal injury suffered by any employe while in its services, the employe so injured being in the exercise of -due care and diligence, in the. following cases: * * * Eourth. Where such .injury was caiused by the negligence of any person in the service of such corporation who has charge of any * * * locomotive engine or train upon a railway.” The fatal injury in that case was sustained by the deceased servant while.engaged in the. line of- his. duty in the yards of the railroad company situated in the .city of Logansport, and. was charged to be due to the operation by appellant’s employes of a .locomotive-engine and cars in.violation of an ordinance of said city. In considering the question relative to the force and effect of the ordinance involved in that case, this court -said: “A disregard of the ordinance, under §7083 Burns 1894, will extend-to the engineer in the employ of appellant and in charge and management of its locomotive -and train; and if. said ordinance was disobeyed by said engineer, as averred, the jury would have the right, to impute such disobedience as negligence. [Citing authorities.] It will not do to say,
,, Appellant’s counsel argue that if .the .ordinance.in dispute is held to apply to the'.operation or movement of .trains upon •tracks, situated within switch' yards,, that it will- have the effect .to regulate the relation of .master and servant. We are not impressed with this contention. The ordinance was riot .especially- intended for .the protection of railway .employes,-but for'the protection of the .public in general, or at ■ least for, all persons who may,.have occasion to b.e upon or pass over the tracks, of a, railroad company, without regard asrto.-whether such tracks were -situated at. or near street Crossings, or in.and upon the switch yards of such company, ■ which.were.open ,to or .accessible to the-public. The fact that the tracks of the'railroad; company-used by it.in the operation-of. its-road may he situated on its.'own property will not alone he .sufficient to relieve the company of obedience to the. requirements of reasonable police regulations. A- railroad company is considered and deemed to hold its .property and -franchise subject to reasonable police regulations, prescribing the manner in which such property and
As previously said, the complaint does not fully disclose the extent to which the switch yard in controversy is open to
It is-insisted that-in the event it should be held that the facts'.alleged show that' appellant was guilty of negligence in its- failure to obey the ordinance, still the facts are not sufficient, it is contended, to show that such.negligence was the proximate cause of the injury of which the plaintiff eompláins. The.alleged facts, it is said, are insufficient to show conclusively that had the engine bell been rung appellee’s decedent would have heard it, or had a watchman been upon ■the rear car when the-train was running backward into the switch yard he would have been able to raise his voice, above the noise of the cars and thereby have given warning of its approach. . By the express averments of the complaint the injury sustained by the decedent is directly charged to be due to the-alleged’negligence of appellant and its servants in r a ■ failure. to comply with the ^requirements of the ordi
Counsel next contend that appellee’s intestate was guilty of contributory negligence for not being ori. the constant alert or lookout for the approach of a train’, and also because he wore a cap at the time of the accident in such a manner as to prevent him from hearing the app'roaching train. The question in regard to contributory negligence was, under all the circumstances in the case, properly submitted to the jury, and there is evidence to justify the jurors in finding, as they did, that the deceased was ‘not guilty of Such negligence. The rule which exacts of á traveler or other person about to cross a railroad track the' caution to' look- in' both directions; arid also to listen in order to ascertain if a train is approaching, is not applied in all its strictness to workmen engaged in the line of their duty 'at work u]pon a railroad track. In the case of Ominger v. New York, etc., R. Co., 4 Hun 159, the court speaking in reference to the'exception to the general rule said: “As to travelers about to cross a traék, it is held negligence, as matter of law, not to look in both directions, in order to see whether, at that time, 'a train is approaching. But it is hardly possible to apply that rule; in its strictness, to a workman engaged on the track. The traveler looks once, and crosses; the workman remains. ■ If it is the workman’s duty, as a matter of law, to look in both directions, he must do this as often as it is possible'for a train to come in sight. * * * Such an obligation would be inconsistent with his proper attention to his wórk. I do not think, therefore, that the rule which has been applied to travelers crossing the track,'is applicáble to workmen whose employment reouires the™ +o remain on or about it.” The same exception is recognized and approved in the
Appellant lastly complains of the court’s rulings in giving and in refusing certain instructions.' Some of those refused aró’to the effect that if the persons in charge of the engine or train, from the alleged negligent running of pushing of which the injury resulted, were at the time fellow servants
What we have said herein in regard to the validity of the ordinance and its application to the switch yard of appellant fully meets the obj ections urged by its counsel in relation to certain other instructions given and refused by the court. When the instructions are considered as an entirety they may be said to have been quite favorable to appellant, and the latter has no reason for demanding a reversal for the giving or refusing of instructions. Binding no reversible error, the judgment is affirmed.