Baltimore & O.S.W.R. Co. v. Berdon

• Decision Date: 15 October 1924
• Docket Number: No. 24002.,24002.
• Citation: 195 Ind. 265,145 N.E. 2
• Court: Indiana Supreme Court
• Parties: BALTIMORE & O. S. W. R. CO. v. BERDON.

195 Ind. 265

145 N.E. 2

BALTIMORE & O. S. W. R. CO.

v.BERDON.^*

No. 24002.

Supreme Court of Indiana.

Oct. 15, 1924.

Appeal from Circuit Court, Scott County; John R. Carney, Judge.

Action by Gustav A. Berdon, administrator, against the Baltimore & Ohio Southwestern Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Superseding former opinion, 143 N. E. 677.

McMullen & Mcmullen, of Aurora, for appellant.

Thomas M. Honan, of Seymour, and Beckett & Beckett, of Indianapolis, for appellee.

EWBANK, C. J.

Appellee recovered a verdict and judgment against appellant for $30,000 for the death of his decedent, Joseph F. Hornung. Overruling appellant's motion to make the complaint more specific, overruling its demurrer to the complaint, and overruling its motion for a new trial are assigned as error.

The complaint alleged, in substance, that the plaintiff was duly appointed as administrator of the estate of his decedent by the circuit court of the county in which said decedent lived at the time of his death, and had qualified as such administrator; that defendant was a corporation engaged in operating a railroad extending across Ohio, Indiana, and certain other states, and engaged in interstate commerce as a common carrier for hire; that plaintiff's decedent was in the employ of defendant as a fireman on one of defendant's locomotives in an interstate train operated by defendant on said railroad between Cincinnati, Ohio, and Seymour, Ind., and in the line of his employment was working as a servant of defendant in the operation of said train from Cincinnati westward into Indiana, on its way between said points; that said train was being run by defendant as its second No. 23, pursuant to an order which had been made, published and promulgated by defendant, that gave said train the right of way from Milan to North Vernon, stations on said railroad in the state of Indiana, as against trains numbered 2 and 68 and 46, respectively; that there was only a single track on said railroad between the stations named; that defendant's servants in charge of and operating the east-bound train No. 2 received said order; and “that under and pursuant to said order it became the duty of said employés, servants and agents running and operating said train No. 2 to hold said train at said city of North Vernon until said train second No. 23 had reached the city of North Vernon as aforesaid, and at said point said trains were scheduled and notified by reason of said order to pass each other,” but that defendant's servants in charge of train No. 2 negligently failed to obey said order, and negligently ran that train toward the east from North Vernon on the same track on which the second No. 23 was approaching from the east, “and negligently ran said train No. 2 east as aforesaid at a high and dangerous rate of speed, to wit 60 miles an hour toward and into train second No. 23 upon defendant's track” between North Vernon and Milan, “and there negligently collided with said train second No. 23, *** and thereby struck, injured and killed plaintiff's decedent upon said train second No. 23 in his position upon said locomotive and while performing his duties as said fireman upon said locomotive in the line of his employment”; that said decedent left a wife and five minor children who, because of certain facts stated, were thereby damaged in the sum of $50,000.

[1] Appellant's motion to make the complaint more specific by explaining the use of the word “duty” as applied to the servants operating train No. 2 being required to hold the train at North Vernon was properly overruled. All of the facts which imposed that duty, including the alleged facts that there was only a single track from that city eastward to Milan, and that they had been given an order that train second No. 23 from the other direction had the right of way over train No. 2, were fully stated in the complaint, and the further charge that by reason of such facts it was the duty of those in charge of the east-bound train to hold it at North Vernon until the west-bound train arrived there was not indefinite nor uncertain. Pittsburgh, etc., R. Co. v. Lightheiser, 163 Ind. 247, 254, 71 N. E. 218, 660;Chicago, etc., R. Co. v. Hamerick, 50 Ind. App. 425, 434, 96 N. E. 649;Wellington v. Reynolds, 177 Ind. 49, 52, 97 N. E. 155.

[2][3] Neither was it error to overrule the motion to require that the complaint should state facts showing why 60 miles an hour was dangerous and negligent. The gravamen of the alleged cause of action was running an east-bound train along the single track on which a west-bound train was approaching that had the right of way and thereby running it against plaintiff's decedent and killing him, and the speed at which it was operated was merely incidental. Overruling a motion to make an immaterial averment more specific is not cause for reversing the judgment. Cincinnati, etc., R. Co. v. Little, 190 Ind. 662, 131 N. E. 762;Tecumseh, etc., Co. v. Buck (Ind. Sup.) 135 N. E. 481.

[4][5] The complaint charged that plaintiff's decedent was killed in the performance of service in the operation of an interstate train as a servant of defendant in the conduct of its business as a railroad carrier engaged in interstate commerce. Under such circumstances the act of Congress (Act April 22, 1908, U. S. Comp. Stat. § 8657) applies, and he did not assume the risk of injury by reason of the negligence of fellow servants. The statute makes an interstate railroad carrier liable in damages to an employé while engaged in interstate commerce for injuries or death resulting in whole or in part from negligence of any “officers, agents or employés of such carrier,” and abrogates the fellow servant rule at common law. Mondou v. New York, etc., R. Co., 223 U. S. 1, 32 Sup. Ct. 169, 175, 38 L. R. A. (N. S.) 44.

[6] Interrogatories 4, 5, and 6 inquired whether or not defendant issued and delivered order No. 142, on the date of the accident, whether or not it was in certain words, as set out, and whether or not it gave train second No. 23 the right of way over train No. 2 between Milan and North Vernon on that day. Defendant's motion to strike them out, for the alleged reasons that they were irrelevant and not connected with the pleadings, and that they asked hypothetical questions, asked for a copy of an instrument, and asked defendant to determine the law on the facts stated, was overruled, and appellant answered each interrogatory in the affirmative. This ruling was not erroneous. It did not appear from the questions or the answers thereto that the order was in writing, and whether or not the abbreviations used expressed the meaning that one train had the exclusive right to use the single track until it should have passed over it was matter of fact. The facts inquired about were in issue, and were material.

[7] The complaint having alleged that plaintiff was the administrator of his decedent's estate,...