Chicago, I. & L. Ry. Co. v. Stepp

• Decision Date: 14 May 1909
• Docket Number: No. 6,517.,6,517.
• Citation: 44 Ind.App. 353,88 N.E. 343
• Court: Indiana Appellate Court
• Parties: CHICAGO, I. & L. RY. CO. v. STEPP.

44 Ind.App. 353

88 N.E. 343

CHICAGO, I. & L. RY. CO.

v.STEPP.¹

No. 6,517.

Appellate Court of Indiana, Division No. 2.

May 14, 1909.

Appeal from Circuit Court, Floyd County; W. C. Utz, Judge.

Action by Sarah H. Stepp, as administratrix, against the Chicago, Indianapolis & Louisville Railway Company. Judgment for plaintiff, and defendant appeals. Reversed, with instructions.E. C. Field, H. R. Kurrie, M. Z. Stannard, and G. B. McIntyre, for appellant. George C. Kopp, Willard Phipps, and C. L. Jenett, for appellee.

COMSTOCK, P. J.

Appellee recovered judgment against appellant for the ??ing of her decedent by a train run on appellant's railway over a public crossing, about 9 o'clock in the morning of October 7, 1905. The amended complaint is in three paragraphs. The first charges negligence in failing to give the signals as required by statute as the train approached the crossing; the second paragraph, in failing to give such signals, and in erecting a berry shed and piling cross-ties upon the right of way some distance south of the crossing so as to obstruct the view of a train from the time it was within 500 feet, until about 150 feet from the crossing; the third, negligence in failing to give warning to the decedent when he was discovered upon the track when the engineer was about 125 feet from the crossing, and also in maintaining a berry shed and piling cross-ties as above stated. In the third paragraph there is no charge of failure to give the statutory signals. A separate demurrer for want of facts was overruled as to each of said paragraphs, and a general denial filed thereto. Appellant's motions for judgment on the answers to interrogatories returned by the jury and for a new trial were overruled. The assignment of errors question the sufficiency of each paragraph of said amended complaint, the action of the court in overruling appellant's motion for judgment on the answers to interrogatories, and in overruling the motion for a new trial.

Appellee makes the point that the record fails to disclose that any demurrer was filed to either paragraphs of the complaint, and that no question is presented as to their sufficiency. The point is made upon the fact that the pleading to which the demurrer was addressed is styled the complaint. The demurrer was, however, filed after the amended complaint was filed, and it was overruled as a demurrer to the amended complaint. It should therefore be treated as a demurrer to the amended complaint. City of Vincennes v. Spees, 35 Ind. App. 389, 74 N. E. 277.

It is objected that in neither of said paragraphs is it averred that appellant was negligent. Each paragraph alleges that the defendant, on the 7th day of October, 1905, was the owner and operator of a line of railway, with locomotive, freight, and passenger cars, to and from the city of Louisville, Ky., to Chicago, Ill.; that on said day defendant's railroad and right of way ran through Clark county, Ind., and crossed at right angles the public highway, known as the “Salem Road,” at a point near St. Joe, Clark county, Ind.; that said railroad runs north and south at said highway crossing, and said highway runs east and west; that on said day, while plaintiff's decedent was traveling west on said highway, and when he arrived at a point about 4 or 5 feet from defendant's railroad track and right of way, where the same crosses said highway, and when he reached a point about 12 inches west of the west rail of defendant's railroad track, he was ran at, against, upon, and struck by, a locomotive in charge of defendant's servants, drawing a passenger train and traveling north on said railroad track at the rate of 50 miles per hour, and then and there instantly killed. The first paragraph alleges, in addition, that defendant's servants in charge of defendant's locomotive and train of cars which struck and killed the decedent carelessly and negligently failed and omitted to sound the whistle on said locomotive distinctly three times when the said locomotive was not less than 80 rods, nor more than 100 rods, from said crossing, and carelessly and negligently failed to ring the bell attached to said locomotive continuously when said locomotive was not less than 80 rods nor more than 100 rods from said crossing and until said locomotive had reached said crossing. In addition to the said objections made to the third paragraph, it is especially objected to the first paragraph that it contains no averment that, if the statutory signals had been given, they could have been heard and the injury avoided. Said paragraph, in addition to the above, after a direct statement of the acts of negligence by appellant's servants, alleges that, as a direct result of the negligence of the defendant as herein set out, the decedent met his death. These averments, taken together, sufficiently charge the cause of the injury, and the fault of appellant.

In the second paragraph the defendant is also charged with having, upon said 7th day of October, and for more than four weeks prior thereto, kept and maintained a berry shed, located at a point about 160 feet south of the crossing of said highway, and about 6 feet from defendant's railroad track; that said shed was about 15 feet high, 15 feet in width, and about 36 feet in length; that beginning at the south end of said berry shed there was, and had been for more than two weeks prior to the accident, a number of cross-ties extending about 458 feet south of said shed and parallel with said railroad track and right of way; that said cross-ties extended about 9 feet above the grade of said railroad track; that both berry shed and cross-ties were on the east side of said track; that owing to said cross-ties being placed upon the defendant's right of way as aforesaid, and owing to said berry shed, decedent's view of said railroad track was obstructed, beginning at a point 150 feet south of said crossing for a distance of 494 feet; that notwithstanding the fact that they obstructed the view of people using said highway,traveling west, defendant carelessly and negligently permitted them to remain, etc. It also charges that by reason of the carelessness and negligence of the defendant's servants in failing to sound the whistle on said locomotive, and ring the bell attached to the same, as complained of herein, and...