50 Ind. App. 425 | Ind. Ct. App. | 1911
— Davis P. Hamerick, as administrator of the estate of William E. MeCalley, deceased, brought this action against appellant to recover damages for the death of said decedent alleged to have been caused by the negligence of appellant.
Under the issues joined there was a trial by jury and a verdict for appellee in the sum of $3,200. Judgment was rendered on the verdict, from which this appeal is prosecuted.
The errors relied on for reversal challenge the sufficiency of the facts averred in each of the first,' second and third paragraphs of the amended complaint, also the overruling of appellant’s motion for judgment on the answers to the interrogatories, notwithstanding the general verdict, and overruling the motion for a new trial.
Omitting the formal parts, the first paragraph of the amended complaint, in substance, avers that appellant owns and operates a line of railroad from the city of Chicago, in and through Pluntington and Wabash counties, in the State of Indiana, to the city of Erie, in the State of Pennsylvania; that it owns a large number of locomotives, cars, trains, etc., which it operates on said road; that it maintains along its road, side-tracks, switches, stations, plat-* forms, systems of signals and all usual and necessary equipment for the management and operation of such road; that on December 11, 1905, William E. MeCalley, appellee’s decedent, left Huntington, Indiana, as engineer on engine No. 776, going west, which was the head engine of an extra train running as a double-header; that when said train left Huntington the erew had meeting orders for trains No. 32 and No. 74, east bound, at Bippus, Indiana, the first station west of Huntington; that when said extra train came
It is further averred that appellee is the duly appointed administrator of decedent’s estate; that decedent left surviving him Allie M. McCalley, his widow, Alonzo V. and Prank McCalley, his children, aged respectively twenty and thirteen years, who were dependent upon him.
The second paragraph of amended complaint, contains substantially the same averments as the first paragraph, and, in addition thereto, alleges that it was about 5.45 o ’clock p. m. when the accident occurred; that it was dark; that train No. 74 was standing on the main track in front of the station at Servia, and the headlight on engine No. 809, drawing said train No. 74, was not burning so as to be visible to the crew of said extra train; that the engineer on train No. 74 was in the service of appellant, and at the time acting in the line of his duty and in charge of the engine drawing said train; that as such engineer it was his duty to have the headlight on his engine burning so as to be visible as a signal to approaching trains; that said McCalley, as soon as he saw train No. 74, made every effort to stop his train, but without success; that by reason of the negligence of the engineer on said train No. 74 in failing to have his headlight burning so as to be visible to the employes on an approaching train, and by reason of said operator giving said McCalley the signal to come down the main track, the latter did proceed on down the main track with his train, which collided with train No. 74, causing his death, by and on account of the negligence aforesaid.
The third paragraph of the amended complaint combines the averments of the first and second paragraphs, and for the purposes of this appeal is the same as the latter.
The sufficiency of each paragraph of the complaint is questioned by demurrer and by independent assignment of error. It is urged that neither paragraph states a cause of action under the common law, and that the facts averred are
The specific objection urged against the complaint is that the allegations charging negligence are mere conclusions, and not the averment of facts. This objection is specially urged with great emphasis against the statement that “the operator at Servia gave said McCalley a signal calling him on down main track,” also “that it was the duty and business of said operator * * * to give proper signals to employes,” and that it was “the duty and business of said Mc-Calley to obey the signals given him by said operator. ’ ’
Webster defines the word signal to mean “a sign, event or watchword which has been agreed upon as the occasion of concerted action. A sign made for the purpose of giving notice to a person of some occurrence, command or danger.” Applying this definition to the business of operating railroad trains, it is apparent that the pleader in a case like this cannot go far in defining the alleged signal and its meaning,
The complaint shows a fully-equipped telegraph office and signal station at Servia, on appellant’s road, with an employe in charge, whose business it was to operate the same, and who gave the alleged signal of which appellee complains.
In the latter ease the weight of authority is decidedly to the effect that such averments state conclusions of law, and not facts. But the use of the word duty in the case at bar, clearly comes within the former class, and is employed in the sense of work or labor. This view is strengthened by the fact that it is used in connection with the word “business.” Pittsburgh, etc., R. Co. v. Lightheiser (1904), 163 Ind. 247, 254, 71 N. E. 218, 71 N. E. 660; Cleveland, etc., R. Co. v. Morrey (1909), 172 Ind. 513, 520, 88 N. E. 932; Diamond Block Coal Co. v. Cuthbertson (1906), 166 Ind. 290, 315, 76 N. E. 1060; Chicago, etc., R. Co. v. Barker (1908), 169 Ind. 670, 675, 83 N. E. 369, 17 L. R. A. (N. S.) 542; Princeton Coal, etc., Co. v. Roll (1904), 162 Ind. 115, 119, 66 N. E. 169; Chicago, etc., R. Co. v. McDaniel (1893), 134 Ind. 166, 172, 32 N. E. 728, 33 N. E. 769; Hay v. Bash (1906), 37 Ind. App. 167, 172, 76 N. E. 744; Chicago, etc., R. Co. v. Hamilton (1908), 42 Ind. App. 512, 517, 85 N. E. 1044; Pittsburgh, etc., R. Co. v. Rogers (1910), 45 Ind. App. 230, 242, 87 N. E. 28.
The first paragraph states a cause of action under the fourth clause of section one of the employers’ liability act (§8017 Burns 1908, Acts 1893 p. 294). As the second and third paragraphs contain the same allegations as the first, and some additional averments, they are likewise sufficient as against the demurrer.
The next question arises on the motion of appellant for judgment on the answers to the interrogatories, notwithstanding the general verdict. The substance of the answers, in so far as material to the questions presented, is as follows: The accident occurred on December 11, 1905, on which day appellant had in force the following block-signal rules: “Rule 3. The several positions of train order signals described in Rule 2 will be indicated at night by different colored lights at the top of the signal posts, red signifying danger, stop; green signifying caution, proceed with care; and white signifying safety, no train on the block.” Appellant’s road passed through Huntington, Bippus, and Servia, Indiana, and at each of said places it maintained a station, consisting of a telegraph office, block-signal system and switches. On said date appellee’s decedent, William E. McCalley, was employed by appellant as a locomotive engineer, and had been so employed for seven years immediately prior thereto, and previous to that time as a fireman. Decedent had made frequent trips over said road, and was familiar with the tracks and switches at said places. On said date he was in charge of locomotive No. 776, and a
On December 11, 1905, and for many years prior thereto, appellant had in force certain rules governing the running of trains and the action of the engineers in charge of them, and McCalley was familiar with said rules prior to and on December 11, 1905, of which the following were then in
Train No. 74 was a regular east-bound train, and was superior to extra No. 776. Under the rules of appellant, in force December 11, 1905, it was the duty of a west-bound train to take the side-track at any point where it had orders to meet an east-bound train of the same or superior class. It was the duty of McCalley, as the engineer in charge of train éxtra No. 776, under orders received by him at Bippus, to take side-track at Servia. It was moonlight at the time of the accident to said McCalley, and at that time appellant had in force rule 232, which provided that engineers must “keep a constant lookout on the track for danger-signals and obstructions.” Appellant’s track at and near Servia was straight from a point east of the east switch to the point where the accident occurred, and there was no obstruction, at and immediately prior to the time of the accident to Me
Appellant insists that under well-established rules of law, the answers to the interrogatories are in irreconcilable com fliet with the general verdict, and especially urges in this connection the finding that the rules of appellant, in force at the time of the accident, known to the decedent, required a west-bound train to take the side-track at any point where it had orders to meet an east-bound train, and also that it was McCalley’s duty, as engineer, under his orders received at Bippus, to take the side-track at Servia at the east switch to meet train No. 74. Also that the rules provide that a colored block signal will not authorize a train to use the main track, wdiere under the general rules or orders previously received it should take the siding.
It is apparent that the finding that “it was the duty of McCalley, under orders received at Bippus,” to take the switch at Servia, is not the equivalent of a finding based on all the evidence that such was his duty, for the interrogatory expressly limits his duty to the requirements of his orders. Furthermore, the complaint proceeds on the theory that his orders required him to take the siding at Servia, and alleges that he was about to do so when, by signál from the operator,: he was called on down the main track.
Ye come now to the alleged errors presented by the overruling of the motion for a new trial, which was asked for numerous reasons, among them that the verdict (1) is not sustained by sufficient evidence, and (2) is contrary to law.
On the subject of when a rule may be considered abro-i gated, the same author says: “The abrogation by an employer of a rule governing the conduct of employes may be presumed when it is frequently and openly violated for such a length of time that the company could, by the use of ordinary care, have ascertained its nonobservance; and mere nonobservance thereof by an employe does not render him guilty of contributory negligence, precluding recovery for injuries which might have been avoided if he had observed it.” 5 Thompson, Negligence §5404.
In Farris v. Southern R. Co. (1909), 151 N. C. 483, 66 S. E. 457, the defendant was held charged with knowledge of a custom among its employes in crossing its tracks, where the custom had existed for six months.
The same court held that knowledge was shown of a custom of employes to ride on an engine, where the evidence showed the custom to have been in vogue for nine years. Heilig v. Southern R. Co. (1910), 152 N. C. 469, 67 S. E. 1009.
In Barry v. Hannibal, etc., R. Co. (1888), 98 Mo. 62, 11 S. W. 308, 14 Am. St. 610, where a rule of the company stated that an engineer must not permit the fireman to operate the engine, except when the engineer himself is on the engine, and required both to remain on the engine while on duty, and the engineer was injured while off his engine, it was held that negligence of the engineer could not, on such facts, be ruled as a matter of law, and that where there was an established usage of the company’s engineers, known and acquiesced in by its superior officers, to allow an engineer to
The supreme court of Michigan has held that violation of the rules of the company -will defeat recovery, but that an exception exists where the “company itself has sanctioned the custom of its employes to act in violation of the rules, and has thus virtually abrogated them. This exception is based upon the theory that it would be unjust in employers to establish rules, and then sanction their violation, and interpose such violation as a defense. * * * Only when this rule is violated by brakemen so universally and notoriously that it is a fair inference that the company sanctioned and approved the violation is the company barred from this defense.” Nichols v. Chicago, etc., R. Co. (1900), 125 Mich. 394, 397, 84 N. W. 470.
In Cleveland, etc., R. Co. v. Gossett, supra, 543, our Supreme Court, in speaking of the violation of rules, said: ‘ ‘ There are, however, a great many circumstances attending the violation of rules which modify the act and give it such character, with respect to negligence, as will make it a question for the jury.”
In Kane v. Erie R. Co. (1906), 142 Fed. 682, 73 C. C. A. 672, where it was shown to be a part of the duty of a fireman to clean the engine, and it was proved that it was the custom on defendant’s road for a fireman to do the work while the engine was moving, and such custom was known to and sanctioned by the company, although there was a rule in force forbidding a fireman so to do, it was held that the effect of such custom was to abrogate the rule, and that the fireman could not, as a matter of law, be held guilty of contributory negligence, preventing a recovery, for an injury received while so cleaning his engine; that the question was one for the jury. To the same effect are the following cases: Brady v. New York, etc., R. Co. (1903), 184 Mass. 225, 228,
In passing on the motion for judgment on the answers to the interrogatories, we have held that the special verdict is not in irreconcilable conflict with the general verdict because, under the issues, evidence was admissible to prove a custom establishing a rule of operating trains on appellant’s road which would so modify or annul the printed rules as to authorize McCalley to proceed on down the main track to the station at Servia, without being guilty of contributory negligence as indicated by the printed rules.
It is not questioned by appellant, but on the contrary it asserts, that an engineer holding orders requiring him to take the siding at a certain place on appellant’s road, on approaching the station at such place, may proceed on down the main track to the station, if before so doing the block is winked, and in addition thereto, at night a green light is displayed or in the daytime a green flag.
The question here presented is that of the contributory negligence of decedent. Diamond Block Coal Co. v. Cuthbertson, supra, 313.
Can it be said that a person of ordinary prudence would not have done as the decedent did under all the facts of this case as disclosed by the evidence, or can it be said, as a matter of law, that he was guilty of negligence contributing to the collision which caused his death, by running his train dowii the main track to the station, instead of taking the siding ?
There was evidence tending to prove a custom from which the jury in weighing the evidence could find the decedent free from negligence in running his .train down the main track to the station at Servia, and also that such custom was known to and acquiesced in by appellant.
A new trial was also asked on account of alleged errors in giving certain instructions and in refusing certain instructions tendered by appellant. What we have said on other questions in this opinion is applicable to some of the questions raised on the instructions, and need not be repeated.
The jury in answer to interrogatory twenty-two and one-half expressly found that the signal was not given by order of the train dispatcher, so that if there was error in refus>ing the instruction it was harmless to appellant.
Complaint is also made of the refusal of instruction eight, but the record affirmatively shows that it was given.
Instruction fourteen, tendered by appellant and refused, told the jury, in effect, that appellee’s decedent could not recover if he violated his orders in taking his train over the main track to the station at Servia. But the court gave instruction nine, tendered by appellant, which told the jury that if MeCalley was “injured or killed without fault on the company’s part, or by reason of his failure to comply with the orders, rules and directions of the company, he cannot recover,” nor can his administrator.
The other instructions refused were sufficiently covered by those given, to render harmless their refusal.
The court gave instructions covering the non-liability of appellant, where the injury resulted from the inexcusable violation of its reasonable rules and of its orders, in such, way as clearly to set before the. jury the defense made to the suit. The instructions taken as a whole state the law fully and fairly to both parties, and there is no available error shown by the refusal, or in the giving of instructions.
The court did not err in overruling the motion for a new trial. No error harmful to appellant appearing in the record, the judgment is affirmed.
Note. — Reported in 96 N. E. 649. See, also, under (1) 31 Cyc. 115; (2) 26 Cyc. 1384; (4, 5) 31 Cyc. 54; (6) 26 Cyc. 1392; (7) 38 Cyc. 1930; (8) 26 Cyc. 1440; (9) 26 Cyc. 1513; (10) 3 Cyc. 348; (11) 26 Cyc. 1157; (12) 26 Cyc. 1162; (13) 26 Cyc. 1161; (14) 3 Cyc. 347, 348; (15) 3 Cyc. 318, 319; (16) 26 Cyc. 1482; (17) 29 Cyc. 630; (18) 38 Cyc. 1517; (19) 29 Cyc. 633; (20) 3 Cyc. 348; (21) 38 Cyc. 1711; (22) 38 Cyc. 1817; (23) 38 Cyc. 1693; (24) 38 Cyc. 1814; (25) 38 Cyc. 1411, 1450. For a discussion of the disobedience of the rules or regulations of a master as affecting the right of a servant to recover for personal injuries, see 8 Ann. Cas. 3; 10 Ann. Cas. 152; Ann. Cas. 1912A 84. As to pleading and practice under Lord Campbell’s Act arid kindred enactments, see 48 Am. Dec. 636. As to the want of due care by a telegraph operator in controlling train movements, see 75 Am. St. 637.