Baltimore And Ohio Southwestern Railroad Company v. Hill
| Decision Date | 25 June 1925 |
| Docket Number | 12,302 |
| Citation | 148 N.E. 489,84 Ind.App. 354 |
| Parties | BALTIMORE AND OHIO SOUTHWESTERN RAILROAD COMPANY v. HILL, ADMINISTRATOR |
| Court | Indiana Appellate Court |
Rehearing denied October 15, 1925. Transfer denied April 2 1926.
From Lawrence Circuit Court; James A. Cox, Judge.
Action by Sherman D. Hill as administrator of the estate of Thomas J. Hill against the Baltimore and Ohio Southwestern Railroad Company and James C. Davis, Director General of Railroads Agent. From a judgment against it, the railroad company appeals.
Affirmed.
McMullen & McMullen, M. R. Waite, W. A. Eggers and Robert N. Palmer, for appellant.
Oscar B. Abel and Oren O. Swails, for appellee.
This action was commenced in the Jackson Circuit Court by Sherman D. Hill as administrator of the estate of Thomas J. Hill, against appellant and James C. Davis, Director General of Railroads, Agent. The action against the last named defendant was disposed of an demurrer, after which, on motion of appellant, the cause was venued to Lawrence county, where it was tried by a jury, resulting in a verdict and judgment for $ 17,500 against appellant.
The complaint, omitting the formal parts, alleges, in substance, that on and prior to June 8, 1921, Thomas J. Hill was employed by the defendant as a fireman on a locomotive used in drawing a freight train in interstate commerce, the train being known as first No. 90, and the engine No. 2825. That on said day, said engine, and the machinery and the parts thereof, and the appliances, roadbed, and track of the defendant where the injury occurred were defective, due to the negligence of defendant. That said engine did not have the independent brake valve securely attached to the bracket, and that the flange on the left engine truck was bent and badly worn and defective; that the flanges and the wheels on said engine were badly worn and bent and defective, thereby rendering them insufficient to keep and hold said engine on the track when said engine was in motion; that what is known as the "main pin" was defective, in that, it was not of proper size and texture and smoothness and did not fit properly in the machinery in which it worked, thereby causing said pin to run hot when said engine was in motion; that the switch, frog and track where said injury occurred were badly worn; that the lower bowl and connecting rod of said switch were broken; that the rods and appliances that attached and fastened the said engine to the engine truck were rusted, cracked, improperly adjusted and defective, and that said engine, track and appliances were at said time defective and insufficient in divers other parts and ways which plaintiff cannot set forth and describe in detail for the reason that said engine and appliances have been continually in the possession of the defendant and not subject to the inspection of plaintiff. It also alleges that all of said defects were due to the negligence of defendant and that all of said defects existed on June 8, 1921, and for more than six days prior thereto, and were all known by defendant in ample time to have been repaired and corrected before June 8, 1921, or could have been known by defendant by the use of reasonable care and diligence in time to have been repaired before said date. That on June 8, 1921, while said decedent was employed as aforesaid on said engine No. 2825 and while said engine, together with engine No. 2849, was pulling said interstate train eastward on the track of defendant at Medora, Indiana, and because of the defects and negligence of defendant herein set forth, said engine No. 2825 suddenly broke down, left the track and turned over, thereby and by reason thereof injuring said Thomas J. Hill, and as a result of said injury, he instantly died and that said injury and death occurred without any negligence of said decedent.
Appellant contends that the court erred: (1) In overruling its motion to make the complaint more specific; (2) in overruling its demurrer to the complaint; (3) in overruling its motion to have the transcript and papers in the cause returned to the Jackson Circuit Court from whence the cause came on change of venue, and (4) in overruling its motion for a new trial.
It is not necessary for us to cite any authorities to support the proposition that in the instant case the overruling of the motion to make more specific was not reversible error. In fact, the complaint is more specific than the circumstances required. There is no showing or claim that appellant was harmed by the overruling of this motion.
In support of the contention that the court erred in overruling the demurrer to the complaint, appellant says the defects enumerated in the complaint are not connected by proper allegations of facts with each other; that the complaint fails to show negligence on the part of defendant, i.e., the omission of any duty; that the complaint fails to show that any defect or group of defects caused the death of appellee's decedent and that it fails to show that the decedent did not assume the risk.
Appellant lays much stress upon the fact that counsel for appellee admit that neither they nor appellee know what caused the wreck, and says: "This unique or rather astounding confession explains the lack of theory in the complaint, but does not excuse the action of the court in letting them guess as to the cause." In this connection, let us suggest that there are cases wherein the particular facts and causal circumstances are obscure and where necessarily much is left to inference. In such cases, the rule of evidence, res ipsa loquitur, ought to and in fact does have its concomitant rule of pleading. While a complaint should state the facts with a reasonable degree of certainty, what constitutes a reasonable degree of certainty must depend upon the circumstances and the nature of the case. And where the rule res ipsa loquitur is applicable, reason does not require the plaintiff to state the facts with that degree of particularity which would be required in ordinary cases. Indeed, in such a case, an attempt to specify the remote grounds of negligence would be mere guesswork on the part of the plaintiff. Kaemmerling v. Athletic Mining, etc., Co. (1924), 2 F.2d 574. See, also, concurring opinion of Judge Amidon in that case.
It is also to be remembered that there has been a trial upon the merits, and that § 368 Burns 1926, § 350 Burns 1914, § 345 R. S. 1881, provides that no objection taken by demurrer and overruled shall be sufficient to reverse the judgment, if it appears from the whole record that the cause was fairly tried on its merits. The complaint, however, in our judgment, alleges sufficient facts, and the evidence also shows facts sufficient, as we shall hereafter show, to make the maxim "res ipsa loquitur" applicable. There was no error in overruling the demurrer to the complaint.
The demurrer of Davis, Director General of Railroads, Agent, was sustained, after which, appellant filed its motion for a change of venue, and on this motion, the cause was sent to the Lawrence Circuit Court for trial. After the transcript had been filed in the office of the clerk of the latter court, appellant filed a motion asking that the transcript be returned to the clerk of the Jackson Circuit Court with directions to make certain corrections, all of which were technical and none of which affected appellant's rights or prevented it from having a fair and impartial trial. The record discloses that appellant filed its demurrer to the complaint while the cause was pending in Jackson county. The order overruling this demurrer and granting an exception reads as follows: "The court also overrules the demurrer of the defendant, the Baltimore and Ohio Railroad Company, to which ruling of the court the defendant, the Baltimore and Ohio Railroad Company at the time excepts." Appellant, acting upon the theory that the omission of the word "Southwestern" after the word "Ohio" in the name of the defendant named in the order overruling the demurrer, was not sufficient to show that the court had ruled on its demurrer, and after the transcript had been filed in the circuit court of Lawrence county, asked that court to rule on the demurrer theretofore filed. The court presumably acting upon the theory that the record sufficiently showed the Jackson Circuit Court had overruled this demurrer and given appellant an exception, refused to rule on the demurrer. We hold that the record sufficiently shows that appellant's demurrer to the complaint was overruled and that it reserved an exception to such ruling.
Appellant in this connection also contends that the clerk of the Jackson Circuit Court did not properly certify and identify the transcript and papers in the cause, when the cause was sent to Lawrence county on change of venue. While the clerk of the Jackson Circuit Court did not certify that the complaint and papers set out in the transcript were true and correct copies of the originals or that the papers transmitted with the transcript were the originals filed in his office, there is no claim that the papers copied in the transcript were not exact copies of the originals, or that appellant was harmed in anywise. The court did not err in refusing to send the transcript back to Jackson county.
Did the court err in overruling appellant's motion for a new trial? Appellant says: "There is no evidence as to cause of wrech, negligence of the defendant, negligence of company being the proximate cause of accident, whether decedent assumed risk or whether wreck was other than purely accidental."
Appellant in its brief, assumes that the maxim "res ipsa loquitur" is not applicable to the facts in this case. On the oral argument, when asked by the court as to whether...
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