169 Ind. 670 | Ind. | 1908
Appellant owns and operates a railroad from Chicago to Louisville, through Indiana, and by way of Quincy, Owen county.
At Quincy there is a station-house on the west side and a switch on the east side of the main track. Four hundred fifty feet north of the station is the north connection of the switch with the main track. The switch is operated by a switch-stand located on the west side and about six feet from the west rail of the main track. The switch-stand is eight feet high, and has on top two wings, one painted red and the other white, which serve as targets to signify to approaching trainmen whether the switch is open or closed— the red, when standing at right angles with the main track, indicating danger, or an open switch, and the white, when standing at right angles with the main track, indicating safety, or a closed switch. In the opening or closing of the switch the wings of the stand work automatically, and when in repair cannot mislead. Between the switch-stand and the station-house a country highway crosses the railroad, and on the west side of the main track is a signboard to warn travelers on the highway. In the north end of the station-house is an observation window from which an unobstructed
The foregoing facts are set forth in all the four paragraphs of complaint, to each of which paragraphs a demurrer for insufficiency of facts was overruled and the cause put at issue by the general denial. The case was submitted to a jury which returned a vqrdict for appellee. With’ the general verdict were also returned answers to a large number of interrogatories.
Was the first paragraph sufficient? It is first alleged in this paragraph “that it was the duty of the defendant to keep the switch, appliances and mechanical devices attached as a part of the defendant’s railroad in good repair, and safe for use by its employes, and that on the day aforesaid the defendant negligently suffered said switch to become, and remain, out of repair, and in an unsafe and dangerous condition in this, to wit: Said defendant, on said December 30, 1902, carelessly and negligently permitted said switch to become unlocked, and so turned open and adjusted as to cause the train on which said Barker was then and there performing his duties as engineer, and which was running at a high rate of speed, to pass from the main track onto the switch and collide with certain heavily-loaded cars standing thereon, whereby said train was wrecked and- said Barker killed. ” All the default or negligence that resulted from leaving the switch open is charged directly against the defendant.
In the last case it is said: “The roadbed, ties, tracks, stations, rolling stock, and all the appurtenances of a well equipped railroad together constitute a great machine for transportation. It is the duty of the railroad company to use ordinary care to furnish a sound and reasonably safe machine, to use due diligence to keep it in proper repair, and to use ordinary care, to employ reasonably competent servants to operate it; but, when this duty is performed, the duty rests upon the servant to operate it carefully. ’ ’
The allegations in reference to the signal-light do not exclude the inference that the accident happened in the full light of day; and the averment that the day was extremely cold and the air filled with flying frost, and “by reason of the hazy condition of the weather it was impossible for Barker to see the open switch,” is not a sufficient charge that the day was ‘ ‘ dark and foggy, ’ ’ or that any other reason existed for maintaining a light on the switch in daytime.' The
In McElwaine-Richards Co. v. Wall (1902), 159 Ind. 557, the complaint averred that the “defendant’s” superintendent negligently ordered him to climb upon a plate or chord constituting a part of the building; that the plaintiff did not know how it was placed and held in position, and did not know how it should be held or fastened in position; that he did not know of the unsafe condition of said chord or plate, or that the same was not properly fastened in position ; that the defendant and its superintendent knew at the time that said plate or chord was not fastened, and was unsafe to go upon. It was held that these statements were mere recitals, and could not be considered in determining the sufficiency of the complaint.
Likewise in Lake Erie, etc., R. Co. v. Mikesell (1899), 23 Ind. App. 395, the averments- in the complaint were that the defendant was unlawfully engaged in running its engine and cars over the streets of Frankfort and within the city at
These allegations are not only subject to the same infirmities as the preceding, but they also fail to show that the absence of frost windows in the engine cab was, either the proximate or remote cause of the accident, it not appearing that the windows of the cab were used by the engineer to look for the switch, or that he could have seen the switch through the windows had there been no ice or frost upon them. Neither is it averred that the decedent was ignorant of the fact that frost would accumulate on single window glass during a run on a cold day, nor are there facts alleged showing that he did not assume the-risk of its doing so. To constitute actionable negligence all these things should have been affirihatively shown. American Rolling
The second paragraph of the complaint also averred, in addition to the allegations common to them all, that appellant had Emory McCullough in its employ as a section foreman; that he, as such section foreman, had supervision of that part of appellant’s track that included said switch at the stotion of Quincy; that it. was his duty as such section foreman to maintain the part of appellant’s track under his supervision in good repair and safe condition for use of defendant’s trains and defendant’s employes operating the same; that it was the duty of the defendant to keep said switch closed so as to avoid accident to the company’s servants engaged in running its trains; that in connection with said switch, and used in opening and closing the same, and for the purpose of informing the servants of said company, engaged in running its trains, as to the condition of said switch, whether open or closed, a certain switch-stand, with two painted metal signals, disks or panels attached to the top thereof, one painted white and the other red, was maintained by the appellant, and -that these signals, under ordinary weather conditions, informed the servants operating the trains, on approaching said switch, whether the same was open or closed; that said switch signals were on said day under the control of said McCullough, and it was his duty to adjust the signals and to keep the switch closed, and to keep them in proper repair; that said McCullough, in violation of his duty, negligently opened said switch and permitted it to remain open until the engine operated by the decedent ran into the same 'and killed him; that said McCullough was guilty of negligence in permitting snow and frost to remain on the red painted signal, on account of which the engineer was- prevented from observing the condition of the switch upon approaching the same with his
In the third paragraph it is alleged to be the duty of the defendant to maintain an unobstructed view between the window of its station-house and the target on the switch-
In this paragraph there are sufficient averments that the company maintained at Quincy, within plain view of the telegraph operator and station agent, a switch-stand surmounted with painted wings or blades that indicated auto
Hiere are other questions arising upon appellant’s motion for judgment on the answers to interrogatories and upon the overruling of its motion for a new trial that are left unconsidered because not likely to arise again upon a retrial.
The judgment is reversed, with instructions to sustain the demurrer to the first, second, third and fourth paragraphs of the complaint, and for further proceedings not inconsistent with this opinion.
Judgment reversed.