181 Ind. 202 | Ind. | 1914
Appellant sued appellee for damages, for the alleged wilful infliction of injuries on appellant’s minor son, resulting in the latter’s death. The complaint alleges that the decedent was a trespasser, riding on appellee’s freight train, and, while .the train was running at a high rate of speed, appellee’s brakeman, William J. Hunt, while acting within the scope of his authority to eject trespassers from trains, wilfully kicked and shoved decedent from the
Appellant’s motion for a new trial, challenging the rulings of the court, in directing the verdict, and in the admission and rejection of certain evidence, was overruled, and such action is here assigned as error. It is contended that the court erred in directing the verdict because there was evidence to support the allegation that the brakeman, when he inflicted the injury, was acting within the general scope of authority conferred on him by appellee, and that the other material allegations of the complaint were fully established by uneontroverted evidence. The determination of this question depends on the existence of any evidence to prove the brakeman’s authority. In Lake Shore, etc., R. Co. v. Peterson (1895), 144 Ind. 214, 42 N. E. 480, 43 N. E. 1, it was held that the fact that the wrongdoer was employed and acting as freight brakeman would not, alone, warrant the presumption or inference that such a brakeman was authorized to eject trespassers from the train on which he was employed in such capacity, but that the burden of proving such authority rests on plaintiff. Appellant is not questioning the rule declared in the Peterson case, but claims that the evidence here is sufficient to meet the requirements of such rule, and bases his contention on certain of appellee’s rules, admitted in evidence, and the testimony of brakeman Hunt. Among such rules are .the following, relating to freight conductors: “Freight conductors. Special Instructions. 900. Passengers, including employees not on duty, must not be carried on freight trains without proper authority. 901. Tramps or other persons who have no legitimate business on the trains must not be allowed to ride. Every precaution must be taken to prevent cars being robbed while in transit.” The following rule's, applicable to brakemen, were in force: “Freight brakemen.
Hunt, the brakeman, testified that at the time of the injury on February 10, 1910, he was on his regular run from Elkhart to Englewood, acting in the capacity of forward brakeman; that his conductor was S. S. Swan, and
On cross-examination, he testified in relation to the above matter, as follows: “Q. Mr. Hunt, when was this conversation that yon speak of with reference to this conductor, Swan? A. I would not state the exact date or trip. Q. Was it the last trip you took? A. I could not say whether it was or not, Mr. Drake. Q. Did you have any conversation with him before you started with that train ? A. I had conversation with him in the yard office in coming down to the train. Q. Was this conversation at that time about people robbing the train — stealing from the train? A. I could not say that it was, no, sir. Q. Was it at some other time or some other train ? A. I do not know the exact date, Mr. Drake. Q. You had a coal train at that time did you? A. Yes, sir. Q. Do you know whether there was anythixxg said at this time about keeping people who were liable to steal, away from the trains ? A. I could xxot say there was
“Q. He did tell you to keep people away from the train, that had no business there, didn’t he? A. To keep people away from cars that would be liable to rob them, Mr. Smith. Q. To keep them off the cars too? A. I could not say he told me to put anybody off them. Q. No, ‘to keep people off the cars,’ did he use that expresssion? A. I could not say that he did, no, sir.”
It appears that Hunt never told the conductor, or any member of the crew, anything about what happened to the decedent, and that the conductor had no knowledge whatever of anything that happened with reference to him.
Appellee concedes that the conductor was authorized to eject trespassers and tramps from the train, and that it was competent for him to delegate such authority to Hunt, but that no such delegation was proven. That defendant was liable for an injury wantonly inflicted on a trespasser by an employe in ejecting him from the train, while the employe was acting within the scope of his authority, is not denied. If the evidence was such as to warrant a finding that the conductor authorized the brakeman to keep tramps or trespassers off the train, this judgment must be reversed. A young man named Capps testified that decedent and he “were beating their way” on a coal car on appellant’s freight train, and that Hunt, the brakeman, kicked decedent off the train, thereby causing his death.
The trial court, on appellant’s request, extended the-time for filing his bill of exceptions, containing the evidence, pursuant to the provisions of §661 Burns 1908, Acts 1905 p. 45. Appellee claims that said act of 1905 is void, because in conflict Avitli §24, Art. 1, of our State Constitution, and that, the bill of exceptions having been filed too late under any other law, the same is not in the record. We hold that the act is not in conflict with the constitutional provision above named. The bill Avas filed in proper time, under the provisions of §661 Burns, supra, and properly became a part of the record.
Appellant complains of the action of the trial court in sustaining an objection to the following question, propounded to brakeman Hunt: “What were your duties, Mr. Hunt, as brakeman on that day?” There was no error. The question was objectionable because calling for a conclusion. Grand Rapids, etc., R. Co. v. Ellison (1888), 117 Ind. 234, 20 N. E. 135; Indianapolis Traction, etc., Co. v. Kidd (1906), 167 Ind. 402, 79 N. E. 347, 7 L. R. A. (N. S.) 143, 10 Ann. Cas. 942. It is contended that the court erred in sustaining an objection to the following question asked Mr. Hughes, the rear brakeman: “Mr. Hughes, did you ever receive any instruction from the conductor of your freight train, while employed by the Lake Shore and Michigan Southern R. Co., as to keeping tramps and trespassers off of the train?” There was no error. The context shows that appellant was seeking to prove that conductors of other trains of defendant, on which the witness had acted as brakeman, had instructed the witness to eject tramps from such trains, but it was not designed to prove any instructions by conductor Swan, while in charge of this, or any other train. The information sought was not relevant to any issue here. The fact that other conductors, on other trains, delegated certain authority to certain brakemen, would not tend to prove that conductor Swan delegated like authority to brakeman Hunt. It might well be that one brakeman could be safely trusted with such authority, while another would be unworthy of such responsibility. It is suggested by appellant’s counsel that it was proper to prove a custom or usage, by which brakemen ejected trespassers from trains, which custom was continued for such time as reasonably to warrant the inference that it was known and acquiesced in by the railway officers. The suggestion is sufficiently answered by saying that there was no attempt, by the question in controversy, or by any other, to prove any custom or usage.
Some other questions are presented, but they are not
Note. — Reported in 104 N. E. 16. See, also, under (1) 33 Cyc. 889; (2) 38 Cyc. 1536; (3) 8 Cyc. 1011, 1013; (4) 17 Cyc. 209; (5) 33 Cyc. 880. As to liability of railroad for injuries to trespassers on ears, see 55 Am. Rep. 42. As to when opinions of nonexperts are admissible in evidence, see 30 Am. St. 38. As to the implied authority of a brakeman to eject trespassers, see 2 Ann. Cas. 624; 18 Ann. Cas. 892.