35 Ind. App. 142 | Ind. Ct. App. | 1904
The action of the appellee was commenced in the Grant Circuit Court, from which there was a change of venue to the court below. The overruling of the appellant’s motion for a new trial is assigned as error. In the complaint it was alleged that the appellant (spoken of in the testimony as the Clover Leaf) and the Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company (spoken of in the testimony as the Panhandle) owned, controlled, maintained and operated for their mutual benefit in the city of Marion, Grant county, and in the vicinity of that city, a main, steam railway track, and certain switches and sidetracks connected thereto, which main track was commonly known in that vicinity as the Belt Road, and among other purposes was operated by these companies for transferring cars, locomotives and trains from the main or trunk lines of one of them to those of the other; that connected with the' Belt Road were two- switches or side-tracks, the south one of which was used for the storage of freight-cars and other cars set thereon by the Panhandle, and the north one of which was used for the storage of freight-cars and other cars set thereon by the appellant; that the cars were so set on switches respectively by the employes of the respective companies, known as a yard -or switch crew; that on and prior to February 1, 1902, the yard or switch crew of the appellant consisted of five employes- — the conductor, the engineer, the fireman, and, appellee and another person as brakemen; that there were on the south sidertrack, so connected with the Belt Road, about fifteen cars of freight, all standing, together, on which the brakes were set, so that without releasing the brakes the cars could only be moved by a violent force coming in contact therewith; that the end of this line of cars was within sixty or seventy feet of the point where
So, we are of the opinion that the complaint should be regarded as one proceeding, not as at common law, but under the statute of May 15, 1901 (Acts 1901, p. 160, §5l73a et seq. Burns 1901). It is provided by section one of that statute: “That every steam railroad company operating wholly or partly in the State of Indiana, shall place and maintain upon each switch in said State that is "connected with the main track a signal-light attached in such manner to the moving panel of such switch that it will indicate safety when such switch is set to such main track, and that it will indicate danger when such switch is not set to the main track. Said light shall be kept brightly burn
We see nothing on which to base a serious question in this court as to contributory negligence.
Judgment affirmed.