Chicago & E.R. Co. v. Steele

• Decision Date: 27 February 1918
• Docket Number: No. 23062.,23062.
• Citation: 187 Ind. 358,118 N.E. 824
• Court: Indiana Supreme Court
• Parties: CHICAGO & E. R. CO. v. STEELE.

187 Ind. 358

118 N.E. 824

CHICAGO & E. R. CO.

v.STEELE.

No. 23062.

Supreme Court of Indiana.

Feb. 27, 1918.

Appeal from Circuit Court, Allen County; John W. Eggeman, Judge.

Action by Edward H. Steele against the Chicago & Erie Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.W. O. Johnson and W. M. Johnson, both of Chicago, Ill., and Walter Olds, of Ft. Wayne, for appellant. Bowers & Feightner, of Huntington, and John H. Aiken, of Ft. Wayne, for appellee.

SPENCER, C. J.

[1] This is the second appeal in an action instituted by appellee to recover damages on account of personal injuries sustained by him while in the employ of appellant. Chicago, etc., R. Co. v. Steele (1915) 183 Ind. 444, 108 N. E. 4. Subsequently to the earlier decision of this court, as above reported, appellee was permitted to amend his complaint and to include therein an allegation that he “has expended or incurred liability for medical, surgical, and hospital bills and expenses amounting to $1,000 on account of said injury.” Appellant moved to strike this allegation from the amended pleading on the ground that items of expense which are occasioned by the treatment of an injury are separate and distinct from the damages accruing to the person injured, and recovery therefor must be sought within two years after the expense is incurred or be barred by the statute of limitations. This contention rests on the false premise that medical expenses incurred in the treatment of personal injuries must always be specially pleaded before a recovery therefor can be sustained. Cases may arise in which the facts stated in the complaint are insufficient to advise the defendant of a probable claim for damages of that character, but, as stated in 8 R. C. L. 623, § 165:

“It is the more reasonable and general rule that in personal injury cases expenses incurred for medical treatment need not be specially pleaded, at least where the injury is serious. The reason of this rule is that the description of such an injury apprises the person liable of the necessity for such services.”

See, also, Evansville, etc., R. Co. v. Holcomb (1894) 9 Ind. App. 198, 201, 36 N. E. 39.

The complaint on which this action was first tried, in describing appellee's injuries, alleged that his left arm was crushed off at the shoulder, and his body and limbs were badly cut, bruised, and mangled, thus causing severe pain and suffering and inflicting on him a permanent and lasting injury. Under the rule above announced, it is clear that these allegations, unchanged by the later amendment, would support proof of necessary medical, surgical, and hospital expenses incurred in the treatment of such injuries, even in the absence of the subsequent specific demand. The motion to strike out was properly overruled.

[2][3] The remaining question presented for review arise out of the action of the circuit court in overruling appellant's motion for a new trial, and require for their proper consideration a brief statement of some of the facts shown by the evidence. At the time of his injury appellee was employed as a railroad brakeman on one of appellant's work trains then operating in and near the city of Rochester. In addition to its main track, which extended east and west through said city, appellant there owned and maintained three side tracks which were located to the south of and parallel with the main track. These side tracks were connected at their eastern ends by a series of switches, one of which connected side track No. 1 with the main track at a point where the latter intersected a public highway of the city of Rochester. The work train on which appellee was employed had been standing on side track No. 3, and it became necessary to throw the switch connecting track No. 3 and track No. 2 in order that the train might pass out through the several switches to the main track. The conductor in charge of the work crew directed appellee to throw said switch, and as he was proceeding eastwardly along track No. 2, for the purpose of carrying out that order he was struck from the rear by an engine and tender which were also moving eastwardly over said track in the course of certain switching operations. The engine and tender were running backward at the time, and appellee's complaint, after setting out the above facts, charges that appellant was negligent in failing to station an agent or employé on the rear end of the tender in order to warn persons on the track of approaching danger. The complaint also alleges that appellant failed to have a fireman on the locomotive which struck and injured appellee; that the employés in charge of said locomotive failed to sound the whistle or ring the bell as they approached the highway crossing; and that appellant failed to keep a switchman or watchman at that crossing. Instruction No. 2, given to the jury at the request of appellee, recognizes the rule that a complaint may in one paragraph charge a defendant with several acts of negligence which contribute to the injury complained of, and then states that:

“In actions of this character it is sufficient to entitle the plaintiff to recover that he prove any one or more of the negligent acts charged, by a preponderance of the evidence, which was the proximate cause of the injury, providing that the evidence shows that the plaintiff was free from contributory negligence in producing the injuries complained of in his complaint.”

In objecting to this instruction counsel for appellant direct particular attention to the allegations of...