188 Ind. 130 | Ind. | 1919
— Appellant brought this action against appellee to recover damages for personal injuries received by him on November 26, 1912. The complaint was in three paragraphs. A demurrer for want of facts was sustained to the first and second, and overruled to the third. A general denial to the third paragraph formed the issue submitted to a jury resulting in a verdict, and judgment in favor of appellee. The sustaining of appellee’s demurrer to the first and second paragraphs of complaint, and the. overruling of his motion for a new trial are here separately. assigned as error.
It appears from each of the first and second paragraphs that at the city of Rensselaer, Indiana, appellee maintained stock pens for the use of shippers of stock over its line of railroad. On the south side of these pens it maintained a switch track on which it placed cars, into which cattle, hogs, and other live stock were
With reference to the handling of stock at this point, it was the custom of appellee to place its stock cars on the switch, or what may be called the loading track, and leave to the shippers the work of placing them in position for loading. If more than one car at a time was to be so used, the shipper would move by hand the loaded car away from the chute, and then move the empty car into place for loading.
On the occasion of the alleged injury four cars were to be loaded. One had been loaded and pushed east out of the way. Appellant and five other persons were en.gaged in this work. After moving the loaded car, and while returning to the west end of the empty car, appellant, while walking between the main track and the empty car, was struck by one of appellee’s locomotives, which approached him from the east on the main track, and coasting at a speed of fifty miles per hour. For more than one mile east from the point where the accident happened, the track was clear and almost level. The accident occurred about six o’clock in the evening. It was dark, and the wind was blowing from the northwest.
It also appears that the space between the loading track and the pens was obstructed by various kinds of debris, thereby destroying its use as a passageway. T^ie space between the loading track and the main track was, obstructed by rails taken from the latter track., The recitals common to both paragraphs with reference to pens, tracks, and work in which appellant and his associates were engaged, and the allegations of negligent obstruction of the spaces between the main track and
The acts of negligence charged in the first are: (1) In permitting the two spaces to be and remain obstructed, thereby causing appellant and his associates in the performance of their work to walk upon and dangerously close to the main track; (2) in failing to give crossing signals for highway and street crossings, one of which was within a short distance from their working place. The proximate cause relied on in this paragraph is the failure of appellee to give the statutory signals for highway and street crossings.
The second paragraph proceeds on the theory: (1) Negligent obstruction of the two passageways, thereby forcing appellant and his associates into a dangerous place in the performance, of their work. (2) Negligence in failing to equip the locomotive which collided with appellant with a headlight of not less than 1,500 candle power, in accordance with an order of the railroad commission, which order was at the time in full force and effect. (3) Negligence in equipping said locomotive with a headlight of less than 100 candle power so that no rays of light were reflected along the track in advance of the locomotive to warn appellant of its approach or to enable those in charge of the locomotive to observe and warn him of the danger in time to avoid the accident.
This paragraph presents three questions: (1) Was appellant under the facts disclosed by this paragraph a mere licensee or trespasser while on the premises of appellee to whom appellee owed no duty other than not to wantonly or wilfully injure him. (2) Did the facts alleged affirmatively show that he was guilty of contributory negligence? (3) Did appellee violate any duty owing to appellant in failing to equip its locomotive with a headlight in compliance with the order of the Railroad Commission alleged to be in full force and effect.
The paragraph of complaint under consideration shows that the Railroad Commission, in compliance with this statute, issued an order to appellee requiring it to equip its locomotives in use, as was the one here in question, with a headlight of not less than 1,500 candle power. Appellee failed to comply with this order. The locomotive which struck appellant was equipped with an oil lamp as a headlight of less than 100 candle power.
4. We have seen that appellant was on appellee’s premises not as a trespasser or mere licensee but rightfully there in order to do the work required of him. This being true, appellee was bound to use ordinary care for his protection. The method employed by shippers in placing cars in position for loading, and known to appellee, necessarily brought appellant while there at work dangerously close to its main track. The premises of appellee where the accident happened is shown to have been frequently used by shippers of stock, and under such circumstances it was the duty of appellee to exercise care in the running of its trains, to avoid injury to such persons. Connell v. Southern R. Co. (1899), 91 Fed. 466, 33 C. C. A. 633. The omission to comply with the order of the commission,- under the facts here disclosed, was the neglect of a precaution reasonably proper for the protection of the persons there employed, and amounted to negligence. The facts under consideration justify the conclusion that the order of the commission charged appellee with the duty of installing on its locomotive a headlight of certain specified candle power, and the
Appellee insists that if the trial court erred in sustaining the demurrer to either the first or second paragraph, such ruling was harmless, for the reason that all of the evidence which might have been introduced under either of these paragraphs was admissible under the third.
It is true the third paragraph, by way of recitals and direct allegations of fact, contains all the facts found in the second paragraph, nevertheless appellant’s right of recovery under this paragraph is based on the use on a dark night of an oil headlight which was so defective as not to give out rays of light sufficient for appellant or his associates to see the approaching train in time to avoid injury. Looking to the record, it will be seen that the jury returned with their general verdict answers to interrogatories. These answers, so far as material, go to the question of whether or not the headlight on the locomotive in question could have been seen by appellant had he looked. From our examination'of the record we are clearly of the opinion that the case was tried solely upon the theory presented by the third
Appellant in support of his motion for a new trial relies solely upon alleged errors of the court in giving to the jury certain instructions. Appellee insists that these instructions are not properly before us. 'However this may be, no good purpose can be subserved by a further consideration of any additional questions, for, from a casual observation of the record pertaining to these questions, they will not likely arise in the retrial of this cause, nor are they of general concern.
The judgment of the trial court is reversed, with instructions to overrule appellee’s demurrer to the second paragraph of the complaint, and for further proceedings not inconsistent with this opinion.
Note. — Reported in 122 N. E. 821. Railroads: running train without headlight toward person on track at place other than crossing, Ann. Cas. 1912A 153. Negligence: where accident may have resulted from negligence of injured person, 113 Am. St. 999. Distinction between licensee and invitee, Ann. Cas. 1913C -570. See under (2) 33 Cyc 754; (3) 33 Cyc756.