Chicago & Erie Railroad Company v. La Porte
| Decision Date | 24 May 1904 |
| Docket Number | 4,716 |
| Citation | 71 N.E. 166,33 Ind.App. 691 |
| Court | Indiana Appellate Court |
| Parties | CHICAGO & ERIE RAILROAD COMPANY v. LA PORTE, ADMINISTRATOR |
Rehearing denied November 1, 1904.
From Porter Circuit Court; W. C. McMahan, Judge.
Action by Louis La Porte, as administrator of the estate of Robert La Porte, deceased, against the Chicago & Erie Railroad Company. From a judgment for plaintiff, defendant appeals.
Affirmed.
W. O Johnson, Johnston, Bartholomew & Bartholomew, for appellant.
N. L Agnew, for appellee.
The appellee, administrator of the estate of Robert La Porte, deceased, recovered judgment for damages against the appellant for negligently causing the death of the intestate. The overruling of the demurrer of the appellant to the complaint for want of sufficient facts is presented here as error. It is claimed on behalf of the appellant that the complaint showed that the appellee's intestate was chargeable with contributory negligence. The complaint contained allegations to the effect that the appellant's railway of two tracks, eight feet apart, ran northwest and southeast by a station named Hegewisch, in Illinois; that a manufacturing establishment, in which the intestate was an employe, was situated on the south side of the tracks, opposite the appellant's station building, situated north of the tracks in an angle between the tracks and a public highway which ran across the tracks west of the station to the manufactory; that at 6 o'clock on an evening in December, when it was very dark, the intestate, with several hundred other persons, proceeded from the manufactory over the crossing on the way to their homes in the town, situated north of the railway; that at the instant when they reached the south track a passenger-train, about one-half hour late, coming from the east, was negligently run into the company, and negligently stopped at the station in front of the intestate so as to bar his further progress, and to compel him to stop upon the south track about eight feet from the engine and passenger-train, the bell of the engine ringing, and the engine making a loud noise of escaping steam and by other means; that at the instant when the passenger-train stopped, an irregular train, not due to pass at that time, consisting of an engine, tender, and caboose, was by the appellant at that point negligently run backward, to and over the crossing, and the appellant negligently omitted and neglected to display any headlight or any light of any kind, with the tender in front, the engine backing, and the caboose attached to the front end of the engine, which brought it in the rear of the engine as it so negligently proceeded backward; and the appellant failed and omitted to ring any bell, or make any noise, or display any light, or make any signal of any kind, and negligently so ran the train at the rate of thirty-five miles an hour into the crowd of men of which the intestate was one, and, before he had time or opportunity to retreat or escape, negligently ran the same upon and over the intestate, and instantly killed him; that in so doing the appellant well knew that the large crowd of men were on the crossing, and that it was exceedingly dangerous to life to run the engine, tender, and caboose rapidly, and without such signals, at that time and place, and that the passenger engine had so stopped and was holding the crowd of men on the crossing, but, notwithstanding its knowledge of these facts, it so negligently ran the engine, tender, and caboose over the crossing, and into the crowd of men, and upon and over the intestate, without giving any signal of its approach, and without displaying any light, and at a time when neither of the trains was due, and when the tracks were usually free and clear of obstruction; that the intestate did not see or know of the approach of the engine, tender, and caboose, and could not see or know or hear the same, and was surprised and struck and killed by the same before he saw or knew, or could see or know, of their approach. It is also averred that the intestate was killed by the wrongful act, neglect, and default of the appellant as alleged in the complaint.
Various statutes of Illinois were set out in the complaint, to which more particular reference is not needed in this connection. It is admitted by the appellant that the complaint shows that the irregular train, which ran upon the intestate on the south track, was negligently run and handled. Admitting that it does not appear that the intestate was caused to be at the place where he was when struck by any negligence in the management of the passenger-train, it does not necessarily follow that he was chargeable with negligence in exposing himself to injury from the train on the south track. Nor does it affirmatively appear that he was so chargeable because it is alleged that he, in company with others, left the shops of the manufacturing establishment, and started to cross the tracks, without any allegation of precautionary measures on his part.
It is not necessary to aver in such a complaint that the person injured or killed was not guilty of contributory negligence, or that he was without fault or without negligence; nor is it necessary to state any facts with a purpose thereby to negative contributory negligence. The statute (§ 359a Burns 1901) relieves the plaintiff of the necessity of alleging or proving, in such action, the want of contributory negligence, and makes such negligence matter of defense. The burden of establishing contributory negligence is thus placed throughout the action upon the defendant. A complaint may contain averments and admissions wholly inconsistent with due care on the part of the person injured or killed, and showing affirmatively that such negligence contributed proximately to the injury or the death; but this, very plainly, is not such a complaint.
It is further claimed against the complaint that it is nowhere alleged therein that the intestate left surviving him any widow...
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