34 N.E. 646 (Ind.App. 1893), 992, Ohio And Mississippi Railway v. Hill

Docket Nº:992
Citation:34 N.E. 646, 7 Ind.App. 255
Opinion Judge:DAVIS, J.
Party Name:OHIO AND MISSISSIPPI RAILWAY COMPANY v. HILL, ADMINISTRATRIX
Attorney:J. K. Marsh, W. M. Ramsey, L. Maxwell and R. Ramsey, for appellant. F. B. Burke, for appellee.
Case Date:June 22, 1893
Court:Court of Appeals of Indiana
 
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Page 646

34 N.E. 646 (Ind.App. 1893)

7 Ind.App. 255

OHIO AND MISSISSIPPI RAILWAY COMPANY

v.

HILL, ADMINISTRATRIX

No. 992

Court of Appeals of Indiana

June 22, 1893

From the Clark Circuit Court.

Judgment affirmed.

J. K. Marsh, W. M. Ramsey, L. Maxwell and R. Ramsey, for appellant.

F. B. Burke, for appellee.

OPINION

Page 647

[7 Ind.App. 256] DAVIS, J.

On the first trial, appellee recovered verdict and judgment for $ 3,000. There was an appeal to the Supreme Court. Ohio, etc., R. W. Co. v. Hill, Admx., 117 Ind. 56, 18 N.E. 461.

On return of the case to the lower court the pleadings were amended and issues reformed, and a second trial resulted in a verdict and judgment in favor of appellee for $ 3,500.

The errors assigned are:

1. The court erred in overruling the demurrer to the first paragraph of the complaint.

2. The court erred in overruling the demurrer to the second paragraph of the complaint.

3. The court erred in overruling the demurrer to the third paragraph of the complaint.

4. The court erred in overruling the motion to require [7 Ind.App. 257] the third paragraph of the complaint to be made more specific.

5. The court erred in overruling the motion for a new trial.

The first, second, third, and fourth errors assigned may be considered together.

The contention of counsel for appellant is that no facts showing the negligence complained of are pleaded, and that it is not alleged in what manner the causing of the locomotive to pass rapidly over the side track and switch, and the failure to give the signals caused the injury to the deceased. As to these objections, it is sufficient to say that an examination of the complaint discloses that negligence on the part of the appellant is charged in general terms as the proximate cause of the injury, and the facts in relation thereto are so fully pleaded as to constitute a good cause of action.

It is further urged, in substance, that the facts which are relied on to show that the decedent exercised proper care should be specially pleaded, and that the general averment that he was not in fault is not sufficient.

It has often been decided that the general averment, in such cases, that the injury was caused without any fault whatever on the part of the deceased is sufficient, unless it clearly appears, from the facts pleaded in the complaint, that the person injured was guilty of contributory negligence.

Each paragraph of the complaint is sufficient to withstand the demurrer. There was no error in overruling the motion to make the third paragraph more specific.

It is next insisted that the verdict of the jury is not sustained by sufficient evidence. The evidence tends to prove that the Ohio and Mississippi Railway, running north and south, and the Jeffersonville, Madison and [7 Ind.App. 258] Indianapolis Railway, running east and west, cross at right angles in the city of Jeffersonville. The two railways, at the time of the injuries which constitute the basis of this action, were connected by a double-tracked Y, about 1,100 feet in length, extending from the west side of the O. & M. to the south side of the J., M. & I. The tracks of the Y crossed Illinois avenue, a public street which runs north and south, diagonally, upon a grade above the surface of the balance of the street. The tracks of the Y were so separated that persons might ordinarily walk between them, but this could not be done at the point where the accident occurred when trains were on both tracks. It had been customary for years for the J., M. & I. to bring freight cars over from Louisville on its main track and throw them in upon the Y, to be taken up by the O. & M. and removed to its main track and placed in its trains. This was done by means of a switch engine passing back and forth over the Y, but its duties did not require it to go as far west as Illinois avenue unless it was for the purpose of protecting the crossing.

When the cars were thus being brought over by the J., M. & I., and thrown in upon the Y tracks, its passenger trains could not go out over the main track. Illinois avenue was crossed by the Y tracks within about...

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