186 Ind. 672 | Ind. | 1917
This is an appeal from a judgment for $6,500 recovered by appellee on account of personal injuries sustained by him while in the employ of appellant. The assignment of errors contains five specifications, of which the first four, in so far as they properly present any question, require a determination of the sufficiency of appellee’s complaint as against a demurrer for want of facts. That plehding is in three paragraphs; of which the first alleges, in Substance, that on' March 2, 1910, appellee was in the employ of appellant as a section hand or track laborer, and was then engaged, with other section men-, in the work of raising and ballasting a switch track owned and maintained by appellant near the plant of the Thompson Bottle Company in Gas City; that during the progress of the work one of appellant’s trains, consisting of an engine and several freight cars, entered the switch at its north end and proceeded southwardly until it reached the place of appellee’s employment, where it stopped and waited until appellee and other members of the section gang had finished temporarily the raising and ballasting, of the track at that point in order that said train might pass over the same in safety; that with the completion of such temporary ballasting the train proceeded southwardly over said track and set some of the cars onto a parallel switch running to the Thompson factory; that immediately after appellant’s train had passed over the first switch track at the point of temporary repair, appellee and another workman were ordered by their section foreman and superior officer, one O’Brien, to tamp the ties of said track between the rails thereof, and
■ Each of the other paragraphs of complaint sets up practically the same facts, circumstances and conditions surrounding the injury to appellee, but proceed on different theories in their allegations of negligence. The second paragraph repeats the charge of negligence contained in the first paragraph and alleges further that appellant’s switching crew failed to observe certain rules, by-laws and regulations of the company concerning the giving of warnings and signals in connection. with the movement of cars and engines under the circumstances presented. The third paragraph alleges that appellant’s section foreman, O’Brien, was negligent in failing to warn the men under his control of the
We deem it unnecessary to state further in detail the allegations of the several paragraphs of complaint since the questions presented, in their essence, relate rather to the theory of the complaint than to its particular averments. Counsel takes the position that the facts as set out do not show the violation by appellant of any legal duty which it owed to appellee and that, under such circumstances, it is not sufficient to allege generally that certain officers or agents of appellant were negligent in the omission or commission of some particular act. We do not question the principle relied on by counsel, but cannot concede its application in the present case.
The sufficiency of the proof is challenged by appellant’s motion for a new trial, but an examination of the record discloses evidence which serves fully to sustain the verdict, both as to the issue of negligence and the
No error appearing, the judgment of the trial court is affirmed.
Note. — Reported in 116 N. E. 582. Railroads: flying switch or shunting cars as negligence with reference to employes of railroads, 10 Ann. Cas. 19, Ann. Cas. 1912 D 344; duty of company to warn track employes of* approach of train or car, L. R. A. 1916 F 555.