99 Ind. 551 (Ind. 1885), 11,364, Bedford, S. O. & B. R. Co. v. Rainbolt

Docket Nº:11,364
Citation:99 Ind. 551
Opinion Judge:Mitchell, J.
Party Name:The Bedford, Springville, Owensburg and Bloom-field Railroad Company v. Rainbolt
Attorney:M. F. Dunn, G. G. Dunn, A. G. Cavins and E. H. C. Cavins, for appellant. E. E. Rose and E. Short, for appellee.
Case Date:January 23, 1885
Court:Supreme Court of Indiana
 
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Page 551

99 Ind. 551 (Ind. 1885)

The Bedford, Springville, Owensburg and Bloom-field Railroad Company

v.

Rainbolt

No. 11,364

Supreme Court of Indiana

January 23, 1885

From the Owen Circuit Court.

Judgment is affirmed.

M. F. Dunn, G. G. Dunn, A. G. Cavins and E. H. C. Cavins, for appellant.

E. E. Rose and E. Short, for appellee.

OPINION

Page 552

Mitchell, J.

Solomon Rainbolt, on the 8th day of November, 1881, became a passenger on one of the trains of the Bedford, Springville, Owensburg and Bloomfield Railroad Company, to be carried from Switz City to Bedford.

While being thus carried, the car in which he was seated, together with the train by which he was proceeding, was precipitated into White river while passing over an iron or combination bridge built or used by the company. He sustained severe, and it is claimed permanent, injuries by the fall, and from being involved in the wreck of the train in the river.

His complaint for damages is in three paragraphs, which are in no material respect different from each other.

Preceded by the formal averments, the default of the railroad company is averred in the first paragraph, as follows: "That by the carelessness, negligence and default of its agents and employees, and for want of due care and attention to its duty in that behalf, the said cars broke through the railroad bridge across White river." And in the second as follows: "That by the carelessness, negligence and default of its agents, servants and employees, and for want of due care and attention to its duty in that behalf, the locomotive and cars were run upon and through the railroad bridge," etc. And in the third as follows: "That said defendant did, by its servants, agents and employees, carelessly and negligently conduct the running of said cars, and was so in default in the care and oversight of said railroad and bridges thereon, that said cars were ran upon the railroad bridge over and across White river, said bridge being, as defendants knew, insecure, and were thereby thrown into White river." Each paragraph concluded with an averment of the injuries sustained, and a claim for damages.

The trial resulted in a verdict and judgment, over a motion

Page 553

for a new trial, for the plaintiff, from which judgment the appellant prosecutes this appeal.

The argument of appellant's counsel embraces four points:

1. That the complaint is not sufficient, for failing to show, either by direct averment or by its statement of facts, that the appellee was himself without fault. For this alleged error, it is contended, the motion in arrest of judgment should have been sustained, there having been no demurrer to the complaint.

2. That by reason of the failure of the jury to make direct answers to some of the interrogatories propounded, a venire de novo should have been awarded.

3. That the court erred in giving, and refusing to give, certain instructions to the jury. A summary of those given and complained of, and those refused, will be found farther on.

4. That certain testimony admitted on behalf of the appellees as rebutting evidence was incompetent.

Concerning the first point, we have to say that while it is, and ought to be, the rule, that in actions for damages growing out of the alleged negligence of another, it must always be made to appear from the complaint, either by direct averment or by the statement of the facts and circumstances under which the injury occurred, that the plaintiff was without contributory fault or negligence, we are of the opinion that the complaint in this case is, nevertheless, sufficient within that rule.

The averment that the injury occurred in a given case without the fault or negligence of the plaintiff is not always controlling; nor is the absence of such averment in every case to be taken as a failure to aver due care.

Taking all the allegations of a complaint together, and notwithstanding the formal negative averment, the presumption of contributory negligence may appear, as in the cases of President, etc., v. Dusouchett, 2 Ind. 586, Riest v. City of Goshen, 42 Ind. 339, and other cases, or conversely, as in Duffy v. Howard, 77 Ind. 182, and cases there cited.

Page 554

From the averments in the complaint, in this case, it must be taken that the appellee was lawfully a passenger on the appellant's train of cars, presumably submitting to its rules and regulations as such. The giving way of the railroad bridge, over which the train was passing, precipitated him violently into the river below, inflicting upon him the injuries complained of, and it must be held from the situation in which the appellee is shown to have been, the relation which he occupied toward the railroad company, which relation placed him under no duty except to remain passive in its hands while being carried, that all presumption of negligence on his part is rebutted by the averments of the complaint. Mitchell v. Robinson, 80 Ind. 281 (41 Am. R. 812); Michigan Southern, etc., R. R. Co. v. Lantz, 29 Ind. 528.

It is suggested in the argument, that it does...

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