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

• Decision Date: 12 January 1911
• Docket Number: No. 6,858.,6,858.
• Citation: 93 N.E. 561,48 Ind.App. 675
• Court: Indiana Appellate Court
• Parties: CHICAGO & E. I. R. CO. v. COON.

48 Ind.App. 675

93 N.E. 561

CHICAGO & E. I. R. CO.

v.COON.¹

No. 6,858.

Appellate Court of Indiana, Division No. 1.

Jan. 12, 1911. to Supreme Court denied.

Appeal from Circuit Court, Newton County; Chas. W. Hanley, Judge.

Action by Percy Coon against the Chicago & Eastern Illinois Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.Homer T. Dick, Wm. Darroch, and Frank M. Ross, for appellant. Wm. H. Parkinson, Frank Davis, and Fred Longwell, for appellee.

HOTTELL, J.

This is an action brought by appellee in the Newton circuit court against appellant, to recover damages on account of injuries sustained by appellee in being struck by one of appellant's trains at a crossing of the appellant's track with one of the streets of the town of Brook in said county.

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 and verdict for appellee in the sum of $1,500. Motion for a new trial overruled and exception. Judgment on the verdict.

The errors upon which appellant relies for reversal are: “(1) The complaint does not state facts sufficient; (2) overruling appellant's demurrer to the complaint; (3) the giving of instruction No. 2, on the court's own motion, and each of the instructions numbered 1, 2, 4, 5, and 6, requested to be given by the appellee; (4) refusing to give each of instructions numbered 5 and 17, requested to be given by appellant; (5) overruling appellant's motion for a new trial; (6) sustaining appellee's motion for a judgment on the verdict of the jury.”

Inasmuch as errors 1 and 2 present the question of the sufficiency of the complaint, we will state the material averments of the same. The complaint alleges, in substance, that said railroad crosses East and West street in the town of Brook at an angle of about 45 degrees; that the street is 60 feet wide and the railroad runs northwesterly and southeasterly; that there are a number of buildings and trees obstructing the view of the track as it is approached from the west; that on January 18, 1907, appellee was driving a two-horse, single-seated, covered buggy, approaching the railroad from the west; that when within about 100 feet of the crossing of said street and approaching the same, he “checked his horses and drove in a slow walk and listened and looked for approaching trains; that he continued to look and listen while approaching said railroad crossing for any light or any sound of an approaching train; *** that approaching said point from the north, there is a slight incline towards the south; that on said date and on the said hour, it being about half-past 8 at night, there was a continuous and brisk wind blowing from the southwest; that when approaching said crossing, and continuing to look and listen so far as the darkness of the night would permit, he looking and hearing no signals given, and seeing no light, plaintiff started to drive upon and across the track of this defendant. Plaintiff avers that as plaintiff's horses were upon the track, the 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 25 miles per 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 headight, and carelessly and negligently ran said train and engine at a dangerous, reckless, and unusual rate of speed, to wit, 35 miles an hour at the time it struck said buggy and horses and injured this plaintiff, and carelessly and negligently failed to give any signal whatever of the said approaching train; that by reason of the surrounding obstructions and by reason of the wind and by reason of the steam being so shut off of the said engine, and by reason of the rapid and great speed at which the same was run, the said train did not make any sufficient noise in advance thereof that could be heard for any distance away from it; that said train approached said crossing in the 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) the said train was running, he was unable to get horses and his said buggy out of reach of said train and of said locomotive engine, but that defendant's agents and servants so operating said train, and so negligently and carelessly running the same, ran the same upon and against the plaintiff's said team and buggy, and 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 at a great distance, and thereby greatly and severely bruising and injuring him in this, *** that said injuries were occasioned by the negligence of said defendant, and without any fault or negligence on the part of this plaintiff.”

As above indicated, the first and second errors assigned by appellant bring in review this complaint. The disposition of the second, viz., the error presented by the overruling of the demurrer to the complaint, necessarily disposes of the first, viz., the errors assigned that the complaint does not state facts sufficient.

Counsel for appellant, in their heading of “Points and Authorities,” have quoted several propositions of the law applicable to this error assigned. Among these propositions are the following: “When a pleading is tested by a demurrer, it must stand or fall by its own averments. It can neither find weakness nor strength from other parts of the record. (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 entirely leave out of account the allegations relating to appellant's failure to give the signals required by statute, and the allegations relating to the insufficiency of the headlight used upon the train. These are important allegations, in view of the holdings of this and the Supreme Court of the state. 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.” Burns' Ann. St. 1908, § 5431; Baltimore, etc., R. Co. v. Conoyer, 149 Ind. 524-526, 48 N. E. 352, 49 N. E. 452; Pittsburgh, etc., R. Co. v. Burton, 139 Ind. 357, 375, 380, 37 N. E. 150, 38 N. E. 594.

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, 139 Ind., at page 156, 37 N. E. (38 N. E. 594), says: “This 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 signal 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, as evidenced by the record, viz.: “Plaintiff avers that owing to said negligence and reckless, high rate of speed at (which) said train was running, he was unable to get horses and his said buggy out of reach of said train, but that defendant's agents and servants so operated said train and so negligently and carelessly ran the same upon and against the plaintiff's said team and buggy, and 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 their brief charge the language of the complaint upon this same subject to be as...