Chicago & E.I.R. Co. v. Grimm

• Decision Date: 29 May 1900
• Citation: 57 N.E. 640,25 Ind.App. 494
• Parties: CHICAGO & E. I. R. CO. v. GRIMM.
• Court: Indiana Appellate Court

25 Ind.App. 494

57 N.E. 640

CHICAGO & E. I. R. CO.

v.GRIMM.¹

Appellate Court of Indiana.

May 29, 1900.

Appeal from circuit court, Clay county; S. M. McGregor, Judge.

Action by Daniel Grimm against the Chicago & Eastern Illinois Railroad Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.George A. Knight, for appellant. S. D. Coffey, for appellee.

COMSTOCK, J.

The complaint in this cause was in two paragraphs. The first paragraph, omitting its formal parts, avers that on the 19th day of November, 1897, and for a long time prior thereto, the defendant had been in the business of a common carrier and transporting passengers for hire over its railroad from the city of Brazil to said coal mine known as “Standard Block Coal Company,” and to return therefrom to the city of Brazil; that on said day the defendant undertook and agreed with the plaintiff, for a reasonable compensation theretofore paid by him to said defendant, to safely carry and transport the plaintiff from said city of Brazil to the said Standard Coal Company mine and return in good and comfortable cars; that, pursuant to said agreement and undertaking, the said plaintiff entered the cars of said defendant at the said city of Brazil, and was safely carried and transported therefrom to the said mine, but the plaintiff alleges that said defendant did not keep its agreement and undertaking to safely carry and transport the plaintiff from said mine back to the said city of Brazil in good comfortable cars but failed therein in this, to wit, that the plaintiff entered the cars of said defendant at said mine known as “Standard Block Coal Company” for the purpose of being carried and transported from said mine to the city of Brazil, where he resided, which car was in a train of cars consisting of eight cars; that, instead of hitching the engine by which said cars and train were to be moved to the front of said train, so that the engineer might and could see and observe any obstructions on the railroad track of defendant, and check said train in time to prevent and avoid a collision with such obstruction, it negligently and carelessly attached said engine to the rear of said train, and carelessly and negligently run said train backward at a rapid rate of speed, to wit, near 20 miles per hour; that while so running said train backward the engineer in charge of said engine was unable to see and observe obstructions on said track in time to avoid collision therewith, and by reason of the fact that the cars were not preceded by an engine they were liable to be derailed upon coming in contact with any obstruction on said track; that while thus negligently and carelessly running said train backward at a speed of near 20 miles per hour the same came in contact with a horse on said track, by reason of which the cars ahead of him were derailed, and thrown from the track, causing the other cars to jam together with great force, and throw him against some object in said car, striking him in the small of the back and side, whereby he received the injuries complained of. The acts of negligence charged in the second paragraph are substantially the same as those set out in the first. A demurrer was overruled to each paragraph, and the cause put at issue by general denial. A trial resulted in a general verdict in favor of appellee for $1,488. With the general verdict, answers to interrogatories were returned. The errors assigned are: (1) The overruling of appellant's demurrer to each paragraph of the complaint; (2) the overruling of appellant's motion for judgment in its favor on the answers of the jury to interrogatories notwithstanding the general verdict; (3) overruling appellant's motion for a new trial.

Counsel for appellant contend that the complaint is in tort; for appellee, that it is in contract. Conceding, without deciding, that it is in tort, it will be so treated in this opinion. It is urged against the complaint: (1) That no actionable negligence is charged; (2) that the acts of negligence attempted to be charged are not shown to be the proximate cause of appellee's injury. We would not be warranted in holding as a matter of law that the operating of a train of cars as averred in the complaint was not negligence. It was a question, in our opinion, to be submitted to the jury, under proper instructions. As said by the supreme court in Railroad Co. v. Krapf, 143 Ind. 655, 36 N. E. 903: “It is not necessary in such a complaint to recite all the facts and circumstances that may tend to show that the act complained of was negligent. It is settled by the decisions of this court that a complaint charging the defendant with an act injurious to plaintiff, with a general allegation of negligence in the performance of the act, is sufficient to withstand a demurrer to the complaint for want of sufficient facts; and that under such allegation any evidence tending to show that the act was negligently done may be admitted; otherwise, the evidence would have to be pleaded instead of the facts.” Upon the subject of proximate cause the supreme court, in Railway Co. v. Lucas, 119 Ind. 591, 21 N. E. 971, 6 L. R. A. 197, says: “It is not necessary that precisely such an accident as actually occurred might be anticipated, for there is liability if it was probable that some injury might result from a negligent breach of duty. We have disposed of the argument of appellant which asserts that the negligence attributed to it was not the proximate cause of appellee's injury in what we have said; for, as the authorities all declare, if the injury resulted from the negligent act of defendant, that act will be deemed the proximate cause, unless the consequences were so immaterial and unusual that they could not have been foreseen and provided against by the highest practicable care. The authorities we have cited declare the doctrine we have stated, as do those which follow, and many others. Bish. Noncont. Law, §§ 46, 457; Whart. Neg. (2d Ed.) § 77.” The consequences following the running of the train with the locomotive in its rear, as averred in the complaint, were not so immaterial or unusual that they could not have been foreseen. The objections to the complaint are not well taken.

Counsel for appellant next contend that the court erred in refusing to render judgment in its favor on the answers of the jury to the special interrogatories notwithstanding the general verdict upon the following grounds: (1) The special findings of fact do not show that the negligence charged in the complaint was the proximate cause of appellee's injury; (2) because they show that appellant exercised the highest degree of practicable care to guard appellee against injury; (3) because the collision with the horse was unavoidable. The special facts found show: The train was running at the speed of 12 miles an hour, over a safe track and roadbed, with safe cars and locomotive, all properly equipped. That the road was securely fenced, with good cattle guards at highway crossings, and wing fences thereat; with a competent and careful engineer; with engineer and fireman at their posts, looking ahead for signals; with conductor standing on steps at one side on front end of caboose, and with a brakeman standing on steps at the other side on front end of caboose, both provided with lanterns to signal engineer in case of danger; a brakeman standing at the brake on platform at front end of caboose,-all three of these in a position to see ahead, and all watching for dangers ahead. That it was light enough to see 200 or 300 feet ahead of the train. That a horse suddenly sprang upon the track 15 or 20 feet in front of the caboose, just inside the right of way at highway crossing. That promptly signals were given to engineer, but it was impossible to stop the train and avoid the collision by anything the engineer could have done. The collision occurred with the horse. Three cars were derailed. That appellee had frequently ridden on said train, and knew how it was run and operated. That the collision with the horse was the cause of the derailment, and that the collision was unavoidable. That the engineer and brakeman used every effort to stop the train after the horse sprang upon the track. That the train was a miners' train, composed of box cars. That the collision occurred, not on main line, but on a switch or lateral branch known as “Caseyville Branch.” That said train could not be stopped in time to avoid collision, and that the horse was not observed until he sprang upon the track. Answers of the jury to interrogatories will overthrow the general verdict only when there is such an antagonism upon the face of the record as is beyond the possibility of being removed by any evidence legitimately admissible under the issues in the cause. Railroad Co. v. Lewis, 119 Ind. 218, 21 N. E. 660;Sponhaur v. Malloy, 21 Ind. App. 300, 52 N. E. 245, and authorities there cited. Every presumption is indulged in favor of the general verdict. It implies that the jury found every fact charged in the complaint to entitle appellee to recover, and that every defense set up to defeat a recovery of the plaintiff was found against the defendant.

Is the special finding of facts irreconcilably in conflict with the general verdict? It is shown by the evidence that cattle and horses were frequently, before the accident, found on the track over which appellant ran its train, and that the men on more than one occasion stopped the train to drive them off. When appellee was injured, appellant's train was being run backward at the rate of 12 miles an hour, with a light caboose on the front. It was shown by the testimony that a train run in this manner would be derailed in nine instances out of ten if it came in contact with an obstruction on the track. This evidence removes any apparent conflict in the general verdict and the answers to the interrogatories as to the proximate cause of appellee's injury.

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