Cincinnati, I.&W.R. Co. v. Little

• Decision Date: 22 June 1921
• Docket Number: No. 23510.,23510.
• Citation: 190 Ind. 662,131 N.E. 762
• Court: Indiana Supreme Court
• Parties: CINCINNATI, I. & W. R. CO. v. LITTLE.

190 Ind. 662

131 N.E. 762

CINCINNATI, I. & W. R. CO.

v.LITTLE.

No. 23510.

Supreme Court of Indiana.

June 22, 1921.

Appeal from Superior Court, Marion County; John J. Rochford, Judge.

Suit by Earl W. Little, administrator, against the Cincinnati, Indianapolis & Western Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed, with directions to grant a new trial.Fesler, Elam & Young and F. J. Goebel, all of Indianapolis, and J. S. White, of Rockville, for appellant.

Frank S. Roby, Edward W. Little, and Earl W. Little, all of Indianapolis, for appellee.

EWBANK, J.

Appellee, as administrator, sued appellant for damages for causing the death of appellee's decedent, Otto J. Owen, while he was operating one of appellant's railroad locomotives, engaged in interstate commerce. Appellee recovered a general verdict and a judgment for $18,000 damages.

The complaint, in a single paragraph, is hereafter set out. Appellant filed motions to make the complaint more specific, in four particulars, as enumerated, which motions were each overruled, and appellant excepted. It then demurred to the complaint for alleged failure to state facts sufficient to constitute a cause of action, which demurrer was overruled, and appellant excepted. After the verdict was returned, appellant duly filed its motion for a new trial, for the alleged reasons that the verdict is not sustained by sufficient evidence and is contrary to law, that the damages are excessive, that the court erred in giving certain instructions, and in refusing to give certain others which were requested, and in permitting decedent's widow to remain in the courtroom when the witnesses were ordered separated, and in admitting certain evidence and excluding certain other evidence. The motion for a new trial was overruled, and appellant excepted. The court granted time to file a bill of exceptions,which was duly filed within the time allowed, and appellant perfected its appeal. The errors properly assigned are overruling the motion to make the complaint more specific, overruling the demurrer to the complaint, and overruling the motion for a new trial.

The complaint alleged that appellee's decedent, as an engineer, was operating an interstate extra freight train eastward under written orders to meet a west-bound extra at Maplewood, and to run his train into the side track there from the west end of the siding, while the west-bound extra was required by the rules of appellant to occupy the main track adjoining; that appellant's servants operating the west-bound train, with knowledge of said facts and said rules, “negligently and carelessly left a portion of appellant's said train standing on and blocking the main track adjoining said side track, and negligently turned said switch at the west end of said siding, and ran said engine of appellant's said train into and upon said siding, and negligently *** blocked said side track by said engine, and negligently left said switch open and connected to said side track *** negligently failed to sufficiently warn and flag *** said east-bound train, *** and negligently placed a locomotive engine on said [side] track- feet from the west end thereof, without having any light or signal upon or ahead of the same;” and that appellee's decedent, under orders to take the siding and pass the west-bound train, finding the west switch set to run his train into the side track, ran his train in “at a reasonable and proper speed at which to take said siding,” and collided with the engine of the west-bound train, standing on the siding, and was thereby killed; that “said collision and injury to decedent *** was without any fault, negligence, or knowledge on the part of the decedent, and was caused solely by reason of the negligent acts and omissions of said appellant; *** and that said decedent at the time of said collision and prior thereto was acting in conformity to and in compliance with said orders” to meet and pass the other train at Maplewood. It was also alleged that rules of appellant company provided that “trains must pull into the sidings going forward when practicable;” and that “when a train stops or is delayed, under circumstances in which it may be overtaken by another train,” the flagman must go out and set stop signals; and that “the front of the train must be protected in the same way when necessary by the head brakeman” or the fireman; and that “flagman must not be sent out to flag only certain trains; they must flag all trains.”

Appellant filed motions to make more specific: (1) The averment that it “negligently left a portion of said defendant's said train standing on and blocking the main track,” as against the allegation that it was the duty of those in charge of that train “to occupy the main track adjoining said siding”; and (2) to fill the blank with reference to the number of feet that the locomotive stood from the west end of the switch; and (3) to state the facts supporting the alleged conclusion that “said east-bound train was being run at a reasonable and proper speed at which to take said siding”; and (4) to state specifically the facts on which is based the alleged conclusion that the collision and injury “was caused solely by reason of the negligent acts and omissions of said defendant”; and it excepted to the overruling of each of such motions.

[1][2] That neither of the first three averments thus questioned is as specific as the rules of good pleading would require is obvious. But neither of them was a necessary part of the statement of the alleged cause of action, and it is not reversible error to overrule a motion to make specific an immaterial averment. Premier Motor Mfg. Co. v. Tilford, 61 Ind. App. 164, 167, 111 N. E. 645;Indiana Stone Co. v. Stewart, 7 Ind. App. 563, 564, 34 N. E. 1019;Alleman v. Wheeler, 101 Ind. 141, 144. The fourth clause to which the motion was addressed must be understood as referring to the alleged negligent acts and omissions charged in the complaint to have caused the injury, and, as so understood, was sufficiently specific. The mere charge in general terms that an injury “was caused solely by the negligent acts and omissions of the defendant,” without alleging that the defendant did any negligent acts, or omitted to do anything, having a tendency to cause it, might have to be disregarded as a mere statement of a conclusion of law. Temple v. State ex rel., 185 Ind. 139, 146, 113 N. E. 233;Central Bank v. Martin (Ind. App.) 121 N. E. 57, 58. But where the negligent acts relied on are set out, such a statement may properly be understood to refer to them. It was not reversible error to overrule the motions to make the complaint more specific.

A demurrer to the complaint as failing to state facts sufficient to constitute a cause of action, in that (1) no negligence of appellant was shown, (2) the acts charged as negligence were not shown to have been the proximate cause of the accident, and (3) that negligence of the deceased was shown to have been the sole cause of the injury, was overruled, and appellant excepted.

[3][4] The substance of the negligence charged in the complaint is that appellant's employés, in charge of its west-bound train No. 308, being under orders to place their train on the main track beside the siding at Maplewood, and there to meet and pass the east-bound train No. 209, which they knew was ordered to run into the switch upon the siding to pass them, detached the engine from their train and placed it upon the siding, and left the switch open as if for No. 209 to run in, when they knew that No. 209 was approaching a short distance away, and gave no warning, by flagman or signal or otherwise, that their engine was detached from the train on the main track, and placed on the side track. Admitting for the purpose of the argument that facts are stated which also show that appellee's decedent was guilty of contributory negligence, that would not be sufficient in itself to defeat the action, under the federal Employers' Liability Act (U. S. Comp. Stat. § 8659), where the deceased was injured while engaged in interstate commerce, if the employer was guilty of negligence that operated to cause the injury. Union Pacific R. Co. v. Hadley, 246 U. S. 330, 38 Sup. Ct. 318, 62 L. Ed. 751. We may assume that if no negligence was shown except the negligence of the injured employé there could be no recovery, because his own negligence would bear too large a proportion to the combined negligence of himself and his employer. Norfolk, etc., R. Co. v. Earnest, 229 U. S. 114, 33 Sup. Ct. 654, 57 L. Ed. 1096, Ann. Cas. 1914C, 172. But the complaint sufficiently charged that negligence of employés other than the decedent, for which appellant was answerable, operated to cause the alleged injury and death, to make appellant liable in some amount, and the demurrer was properly overruled.

The court set out the complaint in full in its first instruction, without any suggestion as to which averments were material and which (if any) were not, and by its third instruction told the jury that-

“If you find that such allegations have been proved by a fair preponderance of the evidence relevant thereto, then your finding as to such issue should be for the plaintiff.”

[5][6] There were averments in the complaint, especially the charge of having “negligently and carelessly left a portion of defendant's said train standing on and blocking the main track adjoining said side track,” which were not material to the alleged cause of action, the proof of which would not tend to establish liability on the part of appellant. The practice of reading the complaint to the jury as a whole, where it alleges facts that are immaterial, is not to be commended. However, as the jury was not told that the appellee could recover upon proof of less than all of the material allegations of the complaint, appellant was not harmed. The case is not within those authorities which have held...