Baltimore & Ohio Railroad v. Faust , 85 Ind. App. 435 ( 1925 )

This action was instituted by Theressa Faust, Executrix, against the Baltimore and Ohio Railroad Company to recover damages for the death of John H. Faust, alleged to have been caused by the defendant's negligence.

John H. Faust had been employed by the defendant in its railroad yards at Garrett, Indiana, for several years. In addition to other duties, he was required to assist in icing refrigerator cars. These cars were supplied with ice from an ice-house located in defendant's yards. The work was done by several workmen who dragged the ice out of the ice-house to a platform nearly level with the tracks; thence they moved it up an inclined chute to another platform which was on a level with the top of the cars and from which the ice was placed in the cars through openings in the roof. The workmen pushed the blocks of ice up the chute as far as they could reach by the use of poles or handles, to the ends of which were attached metal hooks; and a man on the elevated platform would pull the ice-blocks the rest of the way with his ice-hook. On the night he received his injury, Faust and his fellow workmen had been ordered to ice a certain car designated as "B. O. No. 14383." In pushing the ice up the chute, two of the workmen stood on the lower platform, one on either side of the chute. Another workman stood on the upper platform and by striking his ice-hook into the top of a cake of ice assisted by pulling it upon the platform. Faust was on one side of the chute at the lower platform. When a cake of ice neared the top of the chute, in some manner, the men lost control of it. It slid back down the chute and struck Faust on the chest, thereby seriously and fatally injuring him.

It is averred in the complaint that the car which Faust was assisting to ice had been selected and assigned by the defendant for use in hauling freight and merchandise originating in the State of Indiana and consigned to and destined for a place in another state of the United States; that the car had been assigned by the defendant, and was then being prepared by it, for use in hauling merchandise and freight as above described; that the car was being iced in order that it might be used as aforesaid; and that therefore the plaintiff's decedent was employed in interstate commerce and traffic by rail.

The complaint also charges that the defendant carelessly and negligently failed to furnish and provide for use in the performance of the work safe, suitable and adequate hooks for handling the blocks of ice; and carelessly and negligently provided, furnished and used in the work hooks of soft metal with dull points and loose and shaky handles, so that it was difficult, if not impossible, to secure a firm hold on the block of ice; and carelessly and negligently failed and neglected to examine, inspect and keep in a reasonably safe and suitable condition the hooks used in the performance of the work; and carelessly and negligently failed to get a secure hold on the heavy block of ice and to hold the block after it had been shoved partially up the inclined way.

The following facts were adduced in evidence in the form of stipulation signed by counsel for each party:

"That on July 21, 1921, George Freese's Sons of Nappanee, Indiana, requested of defendant's station agent at Nappanee, Indiana, an iced refrigerator car to be furnished at Nappanee to be loaded for shipment to Pittsburgh, Pennsylvania; that defendant's agent at Nappanee communicated the request of the defendant's car distributor at Garrett, Indiana; that pursuant to the request refrigerator car No. 14383 was iced at Garrett by the crew of car inspectors in which John Faust was employed; that after being iced it was placed the next morning in a local freight train and billed to the defendant at Nappanee for the purpose of being delivered to George Freese's Sons in compliance with their request; that when the car reached Albion, Indiana, the draw bar broke, making it impossible to move the car further and it was returned to defendant's shops at Garrett next day for repairs; that the car was never delivered to George Freese's Sons but in lieu thereof another car was sent the shipper by extra train; that the substituted car was loaded by George Freese's Sons with butter and eggs and on July 23, 1921, consigned to the customer at Pittsburgh, Pennsylvania, and transferred to its destination."

Nineteen interrogatories were answered by the jury. The first eight relate to Faust's familiarity with the kind of work he was doing at the time of the accident. These answers show that he had been employed as car inspector for several years; that one of his duties was to help ice refrigerator cars; that he had regularly assisted in icing cars at the ice-house; that the ice-house and platforms around it had been in use for several years; that the arrangement of the ice-house and platforms had not changed for several years; that he had helped a great many times to ice cars; that he and other workmen had used the same tools and equipment in icing cars that they were using at the time of the accident; and that the elevated platform was seven feet and seven inches above the lower platform. The remaining interrogatories relate to the ultimate question whether Faust was engaged in interstate commerce and the answers followed the stipulation above set forth.

Trial resulted in a verdict for the plaintiff in the sum of $20,000, on which judgment was rendered. The errors relied on for reversal are (1) overruling the motion for judgment on interrogatories and (2) overruling the motion for a new trial. Under the first assignment of error, the appellant contends that the answers to the interrogatories show (1) that the workman assumed the risk and (2) that he was not engaged in 1, 2. interstate commerce at the time of the accident. We cannot sustain either contention. The answers to the interrogatories do not show that the workman knew and appreciated the danger and then continued in the dangerous position.Pennsylvania Co. v. Stalker, Admx. (1918), 67 Ind. App. 329. Nor do the answers to the interrogatories preclude the legitimate conclusion that the workman was engaged at the time of the accident in interstate commerce. 18 R.C.L. 850 et seq.; NewYork, etc., R. Co. v. Carr (1915), 238 U.S. 260, 59 L. Ed. 1298. The answers to the interrogatories are not in irreconcilable conflict with the verdict.

Under the second assignment of error, the appellant contends that the verdict is not supported by sufficient evidence, that certain instructions given are erroneous, and that certain instructions requested should have been given. We have carefully considered these contentions and we are of the opinion that there is no reversible error presented. The law applicable to the various phases of this case is well settled and a more extended discussion is unnecessary.

Judgment affirmed.