Chicago & E.R. Co. v. Biddinger

• Decision Date: 26 October 1915
• Docket Number: No. 8651.,8651.
• Court: Indiana Appellate Court
• Parties: CHICAGO & E. R. CO. v. BIDDINGER.

61 Ind.App. 419

109 N.E. 953

CHICAGO & E. R. CO.

v.BIDDINGER.

No. 8651.

Appellate Court of Indiana, Division No. 2.

Oct. 26, 1915.

Appeal from Circuit Court, Marshall County; Harry Bernetha, Judge.

Action by Err Biddinger, administrator, etc., against the Chicago & Erie Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.W. O. Johnson and Bull & Johnson, all of Chicago, Ill., and Harley A. Logan, of Plymouth, for appellant. Arthur Metzler, of Rochester, for appellee.

MORAN, J.

On April 1, 1911, while Err Biddinger, accompanied by his wife, Minnie Biddinger, was attempting to cross appellant's railroad upon the principal street in the city of Rochester, Ind., the conveyance in which they were riding was struck by appellant's west-bound passenger train, and the occupants of the conveyance were violently thrown therefrom, and Minnie Biddinger was severely injured, from the effects of which she died the following day. Appellee, as administrator of her estate, brought an action against appellant alleging that her death was caused by the negligence of appellant. A trial by a jury resulted in a verdict in favor of appellee in the sum of $3,000. From a judgment on the verdict appellant has appealed and seeks a reversal on the grounds: (1) That the complaint does not state facts sufficient to constitute a cause of action; (2) error in overruling a demurrer to each paragraph of complaint; (3) error of the court in overruling appellant's motion for judgment on answers to interrogatories; (4) error in overruling appellant's motion for a new trial; (5) error in overruling appellant's motion in arrest of judgment; and (6) error in overruling motion to modify judgment.

The complaint is in two paragraphs, and the material allegations that are common to both paragraphs are: That on April 1, 1911, appellant was a corporation, organized under the laws of the state of Indiana, and that its line of railroad passed through the city of Rochester, Ind., in an easterly and westerly direction, crossing the main street of the city at right angles. On the west side of the street south of the crossing were located a large number of frame buildings, and on the east side and south of the crossing were located a number of dwellings, piles of tile, forest trees, an elevator, and freight cars, which obstructed the view to the railroad east of the crossing and the approach of trains from that direction. As Err Biddinger and his wife drew near the crossing, they exercised due care and caution to hear the approach of trains. That appellant carelessly and negligently ran its train of cars to the west at a speed of 40 miles per hour, and against the conveyance in which Err Biddinger and his wife were riding, and that said wife by reason thereof was violently thrown from the conveyance and greatly injured, so that she died on the following day. The operators of appellant's train failed to sound the whistle or ring the bell attached to the locomotive until within about 150 feet of the crossing, not leaving sufficient time for the deceased and her husband to escape. If the whistle had been sounded at a point not less than 80 rods nor more than 100 rods from the crossing, and if the bell had been rung not less than 80 rods nor more than 100 rods from the crossing, and continuously until the train of cars had passed the crossing, the accident could have been avoided. It is alleged that the husband of the deceased is the sole heir and next of kin and entitled to any damage that may accrue by reason of the death of his wife.

The second paragraph, in addition to the above facts, alleges the violation of an ordinance of the city of Rochester, which limits the speed of locomotives and trains to 25 miles per hour, and, at the time of the accident, the locomotive that came in contact with the conveyance in which the deceased and her husband were riding was propelled at a high and dangerous rate of speed of 40 miles per hour. Damages were demanded in the sum of $10,000.

[1] The first assignment of error presents no question for review. The sufficiency of the complaint for want of facts cannot be assailed for the first time in the appellate tribunal, since the passage of the Act of March 4, 1911 (Acts 1911, p. 415). Robinson v. State, 177 Ind. 263, 97 N. E. 929;Stiles v. Hasler, 56 Ind. App. 88, 104 N. E. 878.

[2] Appellant urges that the demurrer should have been sustained to each paragraph of the complaint for the reason that, before there can be a recovery under the statute for the death of one caused by the wrongful act of another, the complaint must disclose that some one of the class of persons for whom the action can be maintained, under the statute, were dependent, in some way, for support, upon the deceased; and that the allegation that the husband is the sole heir and entitled to any damages that might inure by reason of the wrongful death of the deceased does not bring the complaint within the purview of the statute, authorizing the administrator to maintain an action under section 285, Burns' R. S. 1914.

The right of action, if it exists, is wholly dependent upon the statute, being unknown to the common law. And unless there is a survivor, who has sustained a pecuniary loss by the death of Minnie Biddinger, there is no right of action. Louisville, etc., R. Co. v. Goodykoontz, Guar., 119 Ind. 111, 21 N. E. 472, 12 Am. St. Rep. 371;Pittsburgh, etc., Ry. Co. v. Reed, Adm'r, 44 Ind. App. 635, 88 N. E. 1080;Duzan, Adm'x, v. Myers, 30 Ind. App. 227, 65 N. E. 1046, 96 Am. St. Rep. 341;Wabash R. Co. v. Cregan, Adm'r, 23 Ind. App. 1, 54 N. E. 767.

The act of 1881 (Acts 1881, p. 240), which remained the law until amended in 1899 (Acts 1899, p. 405), provided, among other things, that when the death of one is caused by the wrongful act of another, the personal representative of the former may maintain an action therefor against the latter, if the former might have maintained the action, had he lived, against the latter for an injury for the same act or omission. The damages must inure to the exclusive benefit of the widow and children, if any, or next of kin, to be distributed in the same manner as personal property of the deceased.

The Supreme Court of the state of Kansas, in construing a statute embodying language identical with the above, held that the husband was entitled to recover for the wrongful death of his wife (Atchison, etc., Ry. Co. v. Townsend, 71 Kan. 524, 81 Pac. 205, 6 Ann. Cas. 191), on the theory that he came within the provisions of the statute providing that the next of kin was entitled to recover. This construction was placed upon the statute by reason of the provisions therein that the amount recovered should be distributed in the same manner as personal property of the deceased. While it is well to keep before us the light furnished in this behalf, yet the conclusion we have reached as to the sufficiency of the complaint, as against the objections urged in this particular, need not be based upon that part of the statute that gives the husband, as next of kin, the right to recover according to the construction placed thereon by the Supreme Court of the state of Kansas, for by the amendatory act of 1899, supra, which was in force at the time this action was instituted, and is still the law, the word “widower” was added to the clause, so it reads:

“The damages *** must inure to the exclusive benefit of the widow, or widower (as the case may be), and children, if any, or next of kin,” etc.

By the statute two classes of persons are recognized as beneficiaries. The first class is made up of the widow or widower, as the case may be, and the children, if there be any such persons surviving. The second class consists of the next of kin to the deceased. Pittsburgh, etc., Ry. Co. v. Reed, Adm'r, supra.

It is admitted by appellant that when the action is brought by the administrator for the widow or children, or for both, with the general allegation that the deceased left a widow or children, as the case may be, who will sustain damages by reason of his death, the complaint is sufficient in this respect; but this, it is urged, is by reason of the fact that the husband is under legal obligations to support his wife and children, which does not apply to the wife.

It has been held that the law will imply that the widow and minor children of a deceased have sustained a loss, by reason of his death. Korrady, Adm'x, v. Lake Shore, etc., Ry. Co., 131 Ind. 261, 29 N. E. 1069; Pittsburgh, etc., Ry. Co. v. Reed, supra.

“The children of a decedent are the next of kin, but they are put in the class with the widow or widower, as the case may be, by the statute, but the phrase ‘next of kin,’ as used in the statute, relates to others than the decedent's children.” Pittsburgh, etc., Ry. Co. v. Reed, Adm'r, supra.

It was said in Penn. Co. v. Coyer, 163 Ind. 631, 72 N. E. 875:

“It has never been held in this state that the complaint must show the fact that the widow, widower, children, or next of kin of the deceased had a pecuniary interest in his life, or the nature or extent of that interest.”

The complaint under consideration is sufficient against the objections urged in this respect, as it is only necessary to allege that there are such persons to whom, under the statute, the damages recovered may inure. Salem Bedford Stone Co. v. Hobbs, Adm'r, 11 Ind. App. 27, 38 N. E. 538;Commercial Club, Indianapolis, v. Hilliker, 20 Ind. App. 239, 50 N. E. 578.

[3] It is further insisted that the complaint does not show a liability because the statutory duty imposed by law on railroad companies to sound the whistle and ring the bell only applies as to travelers on public highways actually crossing, or who had crossed, or who were about to cross (New York, etc., Ry. Co. v. Martin, 35 Ind. App. 669, 72 N. E. 654), and that the allegations of the complaint do not bring it within the statute. The complaint alleges:

“That on said 1st...