Chicago And Eastern Illinois Railroad Company v. Coon
| Decision Date | 12 January 1911 |
| Docket Number | 6,858 |
| Citation | 93 N.E. 561,48 Ind.App. 675 |
| Parties | CHICAGO AND EASTERN ILLINOIS RAILROAD COMPANY v. COON |
| Court | Indiana Appellate Court |
Rehearing denied June 27, 1911, Reported at: 48 Ind.App. 675 at 689. Transfer denied November 22, 1911.
From Newton Circuit Court; Charles W. Hanley, Judge.
Action by Percy Coon against the Chicago and Eastern Illinois Railroad Company. From a judgment for plaintiff, defendant appeals.
Affirmed.
William Darroch, Frank M. Ross, Homer T. Dick, Ulric Z. Wiley and Arthur H. Jones, for appellant.
W. H Parkinson, John A. Dunlap, Frank Davis and Fred Longwell, for appellee.
This is an action brought by appellee against appellant to recover damages on account of injuries sustained by appellee by being struck by one of appellant's trains at a crossing of appellant's track with one of the streets of the town of Brook.
The complaint is in one paragraph, to which a demurrer was filed and overruled, and the issues closed by an answer in general denial. There was a trial, resulting in a verdict for appellee in the sum of $ 1,500. Motion for a new trial was overruled, and defendant excepted. Judgment was rendered on the verdict.
Appellant relies for reversal on the following errors: "(1) The complaint does not state sufficient facts; (2) overruling appellant's demurrer to the complaint; (3) giving instruction two, on the court's own motion, and also instructions one, two, four, five and six, requested by appellee; (4) refusing to give instructions five and seventeen, requested by appellant; (5) overruling appellant's motion for a new trial; (6) sustaining appellee's motion for a judgment on the verdict."
Inasmuch as errors one and two present the question of the sufficiency of the complaint, we shall state the material averments thereof. The complaint alleges, in substance, that said railroad crosses, at an angle of about forty-five degrees, a street in the town of Brook, running east and west; that the street is sixty feet wide, and the railroad runs northwesterly and southeasterly; that a number of buildings and trees obstruct the view of the track as it is approached from the west; that on January 18, 1907, appellee, who was driving a two-horse, single-seated, covered buggy, approached the railroad from the west; that when about one hundred feet from the crossing of said street and approaching it, he checked his horses, and drove in a slow walk, listening and looking for approaching trains; that he continued to look and listen while approaching said railroad crossing; that on approaching said crossing from the north, there is a slight incline towards the south; that on said date and about 8:30 o'clock at night, there was a brisk wind blowing from the southwest; that when approaching said crossing, and while continuing to look and listen, and hearing no signals given, and seeing no light, plaintiff started to drive upon and across the track of this defendant; that as plaintiff's horses were upon the track, said defendant carelessly and negligently ran a train of cars on its said road from the northwest, coming down said grade and within said limits of said incorporated town at the reckless speed of twenty-five miles an hour; that the steam was entirely shut off; that the agents and servants, in the operation and management of defendant's said train, carelessly and negligently failed to sound the whistle or ring the bell, and carelessly and negligently operated said engine without any sufficient headlight, and ran said train at a dangerous, reckless and unusual rate of speed, to wit, thirty-five miles an hour, at the time it struck said buggy and horses and injured this plaintiff; that they carelessly and negligently failed to give any signal whatever of the approaching train; that, by reason of the surrounding obstructions, of the noise made by the wind, of the steam being shut off of said engine, and of the rapid and great speed at which said train was running, it did not make sufficient noise in advance thereof to be heard for any distance; that said train approached said crossing in said careless and negligent manner as aforesaid, and when plaintiff's team was upon said tracks of said defendant said plaintiff avers "that owing to said negligence and reckless high rate of speed at [which] said train was running, he was unable to get his horses and buggy out of reach of said train, but that defendant's agents and servants so operated said train, and so negligently and carelessly ran it upon and against plaintiff's said team and buggy, that the end of the pilot of said locomotive engine struck plaintiff's said team and buggy with great force and violence," thereby throwing and hurling this plaintiff a great distance, thereby greatly and severely bruising and injuring him; that said injuries were occasioned by the negligence of said defendant, and without any fault or negligence on the part of the plaintiff.
As heretofore indicated, the first and second errors assigned by appellant bring in review this complaint. The disposition of the second--the overruling of the demurrer to the complaint--necessarily disposes of the first--that the complaint does not state sufficient facts.
Counsel for appellant have quoted the following propositions of law as applicable to the error assigned: (1) (2) "In pleading, it is incumbent upon the plaintiff to state all facts essential to a cause of action, and if any material fact is lacking the complaint will go down before a demurrer." (3) "It is an old and well-settled rule of pleading, that where doubts arise upon the pleading they are construed most strongly against the pleader." (5) "In cases like the one under consideration, it must appear, from the material facts, directly averred in the complaint, that there was some connection, in the way of cause and effect, between the acts of negligence complained of and the injury, or that such negligent acts of omission or commission * * * resulted in the injury complained of, and which result was the consequence of such negligent acts."
These propositions correctly state the law, but do not state the law in its entirety applicable to the determination of the sufficiency of this complaint. There are other principles equally important, and necessary to be kept in mind, before adjudging this complaint bad on the grounds urged by counsel for appellant. The first objection urged against the complaint is as follows: "The demurrer to the complaint should have been sustained, because it is not averred that the imputed negligence of appellant caused the injury complained of." In discussing the objection, counsel treat the complaint as though it proceeded wholly upon the theory that the only negligent acts of omission or commission of the appellant complained of by the appellee related solely to the speed of the train. Counsel leave out of account the allegations relating to appellant's failure to give the signals required by statute, and those relating to the insufficiency of the headlight used upon the train. These are important allegations, in view of the holdings of this court and the Supreme Court. The giving of the signals is required by statute, and as a general proposition, the failure of a railroad company to discharge its duty in regard to giving the signals at public crossings is negligence per se. § 5431 Burns 1908, § 4020 R. S. 1881; Baltimore, etc., R. Co. v. Conoyer (1898), 149 Ind. 524, 526, 48 N.E. 352; Pittsburg, etc., R. Co. v. Burton (1894), 139 Ind. 357, 375, 380, 37 N.E. 150.
In commenting upon the section of the statute requiring the signals to be given, the Supreme Court in the case of Pittsburgh, etc., R. Co. v. Burton, supra, at page 375, said: "This statute expresses the legislative definition of the character and extent of warning which shall be required, and less than the warning required is not deemed reasonable, and constitutes negligence."
While it is true that the allegation in the complaint, with reference to the insufficient headlight, is in the nature of a conclusion, the averments of the complaint in relation to the negligent failure of the appellant to give the signals required by statute and the causative connection of this failure with appellee's injury, we think makes the complaint sufficient in this regard. The law in this class of cases seems to be well settled, but a more serious difficulty arises in its application to the particular case. It seems from the statement of the contents of the complaint in appellant's brief that counsel have labored under a misunderstanding as to its wording. The complaint, in charging the negligence of appellant that caused appellee's injuries, uses the following language: "Plaintiff avers that owing to said negligence and reckless high rate of speed at [which] said train was running, he was unable to get his horses and buggy out of reach of said train, but that defendant's agents and servants so operated said train, and so negligently and carelessly ran it upon and against plaintiff's said team and buggy, that the end of the pilot of said locomotive engine struck plaintiff's said team and buggy with great force and violence," thereby injuring, etc.
The appellant in its brief charges the language of the complaint upon this same subject to be as follows: "Plaintiff avers that owing to said 'negligent' and reckless high rate of speed said train was running," etc. While but one word of this sentence is incorrectly quoted, a complete change in meaning results. Under the wording of the complaint, as counsel for appellant understand and quote it the sole...
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Chicago & E.I.R. Co. v. Coon
... ... W. Hanley, Judge.Action by Percy Coon against the Chicago & Eastern Illinois Railroad Company. From a judgment for plaintiff, defendant ... ...