Toledo, St. L.&W.R. Co. v. Lander
| Decision Date | 09 June 1911 |
| Docket Number | No. 6,988.,6,988. |
| Citation | 48 Ind.App. 56,95 N.E. 319 |
| Court | Indiana Appellate Court |
| Parties | TOLEDO, ST. L. & W. R. CO. v. LANDER. |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Miami County; Jos. N. Tillett, Judge.
Action by Thomas Lander, administrator, against the Toledo, St. Louis & Western Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.Guenther & Clark, Clarence Brown, Charles A. Schmettau, and Robert J. Loveland, for appellant. St. John, Charles & Gemmill, Antrim & McClintic, and Thomas B. Dicken, for appellee.
This was an action by appellee against appellant to recover damages for the alleged negligent killing of Harry E. Lander at a grade crossing in the town of Van Buren. Trial by jury, general verdict, and judgment in favor of appellee. The jury with their general verdict returned answers to 86 interrogatories, on which the appellant moved for judgment in its favor.
The errors assigned and presented call in question the action of the court in overruling a demurrer, for want of facts to the first paragraph of the complaint, and in overruling appellant's motion for judgment on the answers of the jury to the interrogatories, and its motion for a new trial. The objections lodged against the first are alike applicable to the second paragraph of the complaint. The brief of appellant, omitting the caption, sets out a copy of the first paragraph of the complaint, but makes no mention of the second paragraph. The objections urged against the first paragraph are that it does not positively allege in traversable form (1) that the decedent left surviving him a widow, children, or next of kin; (2) that it is not alleged that the beneficiaries were injured by reason of the acts of negligence charged; (3) that, if damages to the beneficiaries are alleged, it does not connect the damages with the negligent acts of which complaint is made. We shall hereafter refer to this paragraph as the complaint.
[1] It is true the complaint must allege the existence of persons to whom under the statute the damages inure. Section 285, Burns' 1908. It is one of the issuable facts to be proved, and is put in issue by the general denial. Chicago & Erie R. Co. v. La Porte, 33 Ind. App. 691, 71 N. E. 166. The complaint in question states: “That the said Harry E. Lander died intestate, leaving surviving him as his only heirs at law and next of kin Cora Lander, his widow, and Vera Lander and Lucile Lander, his infant children.”
[2][3] Our Code of Civil Procedure (section 343, Burns 1908, cl. 2) provides that a complaint shall contain “a statement of the facts constituting the cause of action, in plain and concise language, without repetition, and in such manner as to enable a person of common understanding to know what is intended.” While this provision of our Code does not change the rule requiring material facts to be alleged directly, and not by way of recital, yet it would be exceedingly technical to hold that the quoted allegation of the complaint stated only by way of recital the fact that the decedent left a widow and two infant children. The allegation states more than one fact, but in plain and concise language. It might technically be subject to criticism, but not for any omission or defect which could have affected the substantial rights of appellant. The objection is not well taken. Section 407, Burns 1908; Louisville, etc., Ry. Co. v. Kendall, 138 Ind. 313, 36 N. E. 415; Chicago & Erie R. Co. v. La Porte, supra.
[4] As to the second and third objections, appellant in support thereof has cited a number of cases defining actionable negligence as the point in those cases affirming the asserted weakness in the complaint before us. There is no contention that the complaint fails to charge negligence on the part of the appellant, or that such negligence was the proximate cause of the death of Harry E. Lander. Following these allegations, the age of Lander at the time of the accident is shown, that he was a healthy, able-bodied man, and capable of and was earning $5 per day. It is also stated that the action is prosecuted for the benefit of his said widow and infant children, who have suffered damages because of the death of said Lander in the sum of $10,000, etc. The complaint states facts showing a cause of action against appellant, and in favor of Lander, had he lived, but, as he died from the effect of injuries received because of the negligence of the appellant, the action which he might have maintained survived to his personal representative. Therefore, if the complaint was sufficient to show that it was appellant's failure to perform a duty it owed to the decedent that proximately caused his death, the law steps in and names his widow and children, who, under the showing made in the complaint, are his beneficiaries and entitled to the benefit of any recovery had in such action, on the theory that the death of the decedent, caused in the manner and form set forth in the complaint, as a natural sequence, resulted to the damage of those dependent upon him; they being within the class named in the statute. Section 285, supra;Clore v. McIntire, Adm'r, 120 Ind. 262, 22 N. E. 128;Korrady v. Lake Shore, etc., R. Co., 131 Ind. 261, 29 N. E. 1069.
[5] Claim is made that the facts found by the jury in answer to interrogatories conclusively show that the decedent's negligence contributed to his injury and death. The general verdict is a finding of actionable negligence on the part of appellant, and that the decedent was free from contributory negligence. The facts which are said to be in irreconcilable conflict with the general verdict, and relied on to support the charge of contributory negligence on the part of decedent, may be stated as follows: A few minutes after 7 o'clock on the morning of May 29, 1905, the decedent, while riding in an open buggy or buckboard on First street, with two of his employés, one of whom was driving the horse drawing the vehicle, was killed at a grade crossing in a collision with one of appellant's west-bound passenger trains. The railroad track from where it crosses First street eastward makes a four-degree curve to the north. North of the main track, also crossing First street, was a side track, on which, east of said crossing, stood a number of freight cars. At the west line of First street, and on the south side of appellant's main track, a switch track connected, which extended west. On this switch track, at the time of said collision, and close to said crossing, headed east, stood one of appellant's locomotives, from which escaping steam was making a loud noise. Main street connected with First street 427 feet south of said crossing, and from that point north to the crossing a view of the railroad track to the east, or of cars approaching from the east, was obstructed by buildings, and could not be seen by a traveler on First street south of the crossing, going north, until a point about 40 feet south of the track was reached, from which point on the morning of the accident one looking east could have seen an approaching train for a distance of 496 feet, at a point 30 feet from the crossing 455 feet, 20 feet from the crossing, 412 feet, and 10 feet south of the crossing, 364 feet. The decedent approached the crossing traveling at the rate of 2 miles per hour, and from a distance of 700 feet appellant's train approached the crossing at an average speed of 40 miles per hour, actually passing over the crossing at about 30 miles per hour. The engineer, as soon as he saw the decedent's perilous position, attempted to check the speed of the train, but not in time to stop the engine before the accident. An instant before the collision, the decedent was heard to say “Look...
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