43 Ind. App. 411 | Ind. Ct. App. | 1909
Appellee sought to recover damages for personal injuries sustained by him, while attempting to cross the track of appellant railroad company leading into the yards of appellant McRoy Clay Works, on account of the alleged joint negligence of the appellants. Appellants’ separate demurrers to the one paragraph of complaint were overruled, and the cause was tried by jury upon the issues joined by appellee’s complaint and appellants’ separate answers in general denial thereto. A general verdict was returned for $4,000 damages in favor of appellee and against
The appellants’ separate motions for judgment in their favor on the answers to interrogatories submitted by each, for a new trial, and in arrest, were overruled, and judgment rendered upon the verdict. These rulings are assigned as error.
Appellant railroad company insists that as against it the complaint is insufficient because (1) it fails to show a duty owing by it to the appellee at the time and place of the accident; (2) it shows that the relation of master and servant did not exist between appellee and appellant railroad company at the time of the accident; (3) the appellee in crossing said track was a mere licensee, to whom said company owed no duty of protection against its acts of negligence; (4) no actionable negligence is charged against the railroad company.
Among other things, the complaint shows that the appellant railroad company operated, at and prior to the time and place of the injury complained of, a line of railroad, with a switch or spur leading off from its main track and extending into the enclosed yards and factory of appellant McRoy Clay Works, for the purpose of conveying ears into and out of said factory yard. The appellee was at the time of the injury employed by appellant McRoy Clay Works. Each employe was required by the rules of said clay works to enter and leave said factory through the office morning and evening for registry. This was the only way by which the employes of said factory could reach their work. The switch or spur of the appellant railroad company was located between the office building and the factory building, so that the employes were required Eit all times to pass over said switch track in going to and from their work. The track was depressed about three feet below the surface of the ground at the point where the appellee and other employes were required to cross, and was in-
The complaint further alleges that the railroad company was guilty of negligence, which was the' proximate cause of the injury, in this: * ‘ That it ran a locomotive engine into said yards and upon said switch, and commenced moving cars on said spur-track before the men in said factory had passed out of said factory across said track into said registry office, and negligently ran said locomotive against said box-cars, standing upon said switch, at a high and dangerous rate of speed, at a time when the employes of appellant clay works, including this plaintiff, were passing over said track.” It is also alleged that the appellee‘did not know that said engine was upon said track, and was about to be run against said box-ears standing upon said track, or that said cars would be moved before he had crossed said track; that the employes of the railroad company in charge of said locomotive engine and train of cars knew that the employes of said appellant clay works were passing over said track at said time, and were accustomed each day to pass over said track, and negligently failed to notify said em
The evidence shows that it was the custom of appellant railroad company not to move the cars upon this spur-track until the men had passed over the track and registered. This fact was testified to by various witnesses who had worked in the factory for at least four years. They had never known them to move cars immediately after 5:30 o’clock p. m. It took the men about three minutes to march out bf the factory. The register clock would show 5:31, 5:32 and 5:33. This custom was known to employes of both appellants. On the evening in question appellant railroad company did not wait after the whistle blew, but the
The following facts, among others, were found by the jury in answers to interrogatories: There was a car standing one foot south of the south side of the place where appellee attempted to cross the track. If he had looked he could not
Among the objections made to the complaint by appellant clay Avorks are the folkmang: No facts are stated showing that said appellant kneAv that appellee Avas ignorant of the threatened danger. It does not appear by direct averment that if said appellant had warned appellee that the railroad company had entered the yard Avith its engine, and was intending to move the cars, that appellee could have escaped the injury, nor that said clay Avorks had knowledge of the action of the railroad company in time to Avarn appellee of the danger, so as to enable him to escape the injury. These objections were, we think, well taken, and the court erred in overruling the demurrer of the appellant clay Avorks to the complaint.
Judgment affirmed as to the appellant railroad company and reversed as to appellant Mc-Roy Clay Works, with instructions to sustain its demurrer to the complaint, and that appellant McRoy Clay Works recover its costs against the appellee, and for further proceedings not inconsistent with this opinion.