Chicago & E.R. Co. v. Lawrence

• Decision Date: 27 November 1906
• Docket Number: No. 20,853.,20,853.
• Citation: 79 N.E. 363,169 Ind. 319
• Parties: CHICAGO & E. R. CO. v. LAWRENCE.
• Court: Indiana Supreme Court

169 Ind. 319

79 N.E. 363

CHICAGO & E. R. CO.

v.LAWRENCE.

No. 20,853.¹

Supreme Court of Indiana.

Nov. 27, 1906.

Appeal from Circuit Court, Porter County; W. C. McMahan, Judge.

Action by Mary L. Lawrence, administratrix of Lewis P. Lawrence, deceased, against the Chicago & Erie Railroad Company. From a judgment for plaintiff, defendant appeals. Transferred from the Appellate Court under section 1337u, Burns' Ann. St. 1901. Affirmed.W. O. Johnson and Jno. B. Peterson, for appellant. William J. Whinery and Otto J. Bruce, for appellee.

HADLEY, J.

In its yards at Hammond appellant has a track, running north and south, known as “72.” South of the middle there is a spur connected with 72 and running to the northwest. Appellee's decedent, Lewis P. Lawrence, was a switchman in the employ of appellant, and a member of a switching crew engaged in the Hammond yard. On February 8, 1904, at about 8:30 o'clock p. m., Lawrence and the crew to which he belonged took a train of cars south on track 72 beyond the spur intersection. The engine was backing, drawing the cars after it. The train having passed the spur, the direction was reversed, and going north a car of coal was kicked in on the spur. The train then proceeded north, the engine pushing the cars ahead of it, to a point 100 yards or more north of the spur intersection. Here the train was stopped, and to set an empty flat car also on the spur the engine returned south, drawing the flat after it at the rate of about five miles an hour. When the return south with the flat was started, Lawrence and the other switchman got into the engine cab. The night was cloudy and very dark. The engine, which was backing, had a headlight in front looking north, but no light on the rear of the tender looking south, except two “bull's eye” lights, in size and brilliancy about the same as signal lanterns. As the engine approached some where near the spur intersection, Lawrence, standing on west side of the cab, with signal lantern in hand, proceeding, in the proper discharge of his duty in switching the flat car, seized the handiron of the cab, and let himself down to the step leading to the ground. The coal car that had been previously kicked onto the spur, at the moment Lawrence was alighting from the cab, was standing on the spur, a short distance north of the spur frog, and about 6 1/2 inches west of the line described by the passing engine cab, and when on the engine step Lawrence was caught and rolled between the coal car and engine cab and fatally injured. Appellee, as administratrix, brought this action to recover for the benefit of herself, as widow, and their minor children, on the ground that the death of her husband was caused by the negligence of the appellant. The complaint is in one paragraph, to which a demurrer for insufficiency of facts was overruled. On an answer of general denial the case was submitted to a jury, which returned a verdict for appellee, and answers to a large number of interrogatories. Error is assigned on the overruling of the demurrer to the complaint, the overruling of a motion for judgment on the answers to interrogatories, and for a new trial.

The sufficiency of the complaint is questioned on the grounds of uncertainty, inconsistency, and repugnancy. There is no ground for controversy with appellant that, if a pleading be so uncertain as not to state intelligibly a substantially good cause of action or defense, it will be subject to demurrer for not stating a cause of action or defense, as ruled in Snowden v. Wilas, 19 Ind. 10, 81 Am. Dec. 370, and many other cases. This complaint, however, cannot be justly said to come within the rule. It does contain much unnecessary matter, and gives evidence that the pleader was not clear on what class of facts he should rest his case. The averments concerning the failure of the defendant to furnish the decedent's crew with such a switch engine as was in common use in switch yards, and the failure of the defendant to have and maintain clearance posts at the place of injury, and its failure to have and maintain lights at that place, and the failure of the engineer in charge of the locomotive to warn the decedent of the dangerous proximity of the coal car on the spur, and the violation of the appellant's rules in requiring the decedent to work overtime, are all matters that incumber and cloud the complaint, and the pleading would have been much strengthened as a model if they had been omitted. But, if a good cause of action is in fact stated, the complaint will not fall before a demurrer because of uncertainty, inconsistency, or repugnancy. Coddington v. Cannady, 157 Ind. 243, 61 N. E. 567;Tipton Light Co. v. Newcomer, 156 Ind. 348, 58 N. E. 842;Sheeks v. State, 156 Ind. 508, 60 N. E. 142;Frain v. Burgett, 152 Ind. 55, 50 N. E. 873, 52 N. E. 395. Neither will a demurrer reach duplicity in a pleading. Rielay v. Whitcher, 18 Ind. 458;Denman v. McMahin, 37 Ind. 241;Jones v. Hathaway, 77 Ind. 14, 19. The complaint is no worse than it was before answer, and if more than one cause of action is stated, or it is so inconsistent, uncertain, or repugnant as to mislead the defendant in the preparation of its defense, it should have made available its complete remedy by a motion to separate or to make more certain and definite. There is, however, running through the complaint a chain of averments that indicate, with reasonable clearness, that the pleader chiefly counted upon the violation of an ordinance of the city of Hammond against running locomotives backward in the nighttime without a brilliant and conspicuous light at the rear end thereof. A copy of the ordinance is set forth in the complaint, and the trend of the evidence indicates that this was the theory upon which the case was tried. Besides, this theory is made clear by the court in his charge to the jury. After calling their attention to certain averments in the complaint relating to other alleged delinquencies of the defendant, the charge proceeds: “But the court instructs you, as a matter of law, that under the issues and evidence in this case there can be no recovery on account of ***. This will leave for your consideration the questions relating to the alleged violation of the alleged ordinance.” The rule is that, where the predominating theory of a complaint is doubtful or uncertain, the theory adopted by the parties and the trial court will be adhered to on appeal. Reeves v. Grottendick, 131 Ind. 107, 30 N. E. 889;Machine Works v. Myers, 15 Ind. App. 385, 44 N. E. 193.

The only specific objection to the complaint upon this theory is that there is no charge in the complaint that appellee's decedent was ignorant of the location of the coal car standing on the spur track, and its dangerous proximity to the main track over which the engine was passing, at the time of the injury, and that we must presume that he did not know of its position, and, having exposed himself as the engine passed, he was guilty of contributory negligence. With respect to this point the complaint is as follows: “Said decedent did not know of, had no means of knowing, and could not see by reason of the darkness and the defendant's failure to provide proper headlights and equipment of said engine, the near approach of said engine to said coal car, and the danger to which he was thereby exposed.” Omitting the qualifying sentences, the averment is that the decedent did not know of the near approach of the said engine to said coal car. This is equivalent to alleging that he did not know where...