Chicago, Terre Haute and Southeastern Railway Company v. Meurer

• Decision Date: 28 May 1918
• Docket Number: 23,267
• Citation: Chicago, Terre Haute and Southeastern Railway Company v. Meurer, 119 N.E. 714, 187 Ind. 405 (Ind. 1918)
• Parties: Chicago, Terre Haute and Southeastern Railway Company v. Meurer
• Court: Indiana Supreme Court

119 N.E. 714

187 Ind. 405

Chicago, Terre Haute and Southeastern Railway Company v. Meurer

No. 23,267

Supreme Court of Indiana

May 28, 1918

From Greene Circuit Court; Theodore E. Slinkard, Judge.

Action by Charles E. Meurer against the Chicago, Terre Haute and Southeastern Railway Company.From a judgment for plaintiffthe defendant appeals.(Transferred from the Appellate Court under § 1405 Burns 1914, Acts 1901p. 590.)

Reversed.

Webster V. Moffett, Beasley, Douthitt, Crawford & Beasley and W. F Peter, for appellant.

Jesse F. Weisman, Cyrus E. Davis and Paul Y. Davis, for appellee.

OPINION

Townsend, J.

Action by appellee against appellant for personal injury.There was a trial by jury and verdict for the appellee in the sum of $ 2,000.Errors relied on by appellant for reversal are: First the overruling of its demurrer to appellee's amended complaint; secondly, the overruling of its motion for a new trial.

It is alleged in the complaint that appellant"agreed, received and undertook as a common carrier for hire to safely carry and transport from Indian Springs to the city of Linton, Indiana, a lot of household goods and furniture, five horses, two cows and appellee, in a certain car engaged for that purpose by appellee for the sum of $ 20 paid by appellee to appellant at that time."The complaint then alleges that appellant attached this car to one of its freight trains and hauled it to the city of Linton, and then says: "That upon the arrival at said city of Linton of said train, and before said car had reached the regular point and place that horses and cows were unloaded from cars on said line of railroad in said city, and at a time that said car was still loaded, as aforesaid, and plaintiff was still therein, defendant by and through its agents and servants and employes who were then and there in charge of and had control of said car, locomotive and trains of cars * * * switched said car upon a switch or sidetrack * * * at a place where the same could not be unloaded * * *; that while the car was standing on said sidetrack and switch aforesaid, that said appellant by and through its employes and agents carelessly and negligently ran a train of cars loaded with stone over and along said track and switch at a great and unnecessary rate of speed, to wit, 20 miles an hour," thereby striking the car with great force and violence and injuring appellee.To this complaint appellant demurred for want of facts, which demurrer was overruled and exception was saved.The issue was formed by general denial and two paragraphs of special answer alleging compromise and settlement.

It is earnestly insisted by appellant that the court erred in overruling its demurrer to the amended complaint.The memorandum to the demurrer, which is relied upon by appellant, is to the effect that the complaint does not show that appellant owed appellee any duty at the time the injury occurred except not to wilfully injure him.Appellant says that it appears from the complaint that appellee was simply a passenger; that the car had arrived at Linton and it was therefore appellee's duty to alight and leave appellant's premises.If appellee was simply a passenger on this car to be transported from Indian Springs to Linton, this contention is correct.Appellee earnestly insists that the logical inference to be drawn from his pleading is that he was a passenger caretaker, and that as such his destination in the yards at Linton was at the cattle chute where cattle and horses could be unloaded and, the car not having been placed at that point, that he was rightfully on the car taking care of this stock.

It is true that this complaint does not make clear the relation, but it will be observed from what we have quoted that the allegation is that the car was upon a sidetrack and not at the point where stock was to be unloaded.The evidence in the case tended to show that appellee was a passenger caretaker of the stock, and, if he was such passenger caretaker, he had a right to be upon the car until it arrived at the point where the stock was to be unloaded.Appellee insists that all the evidence tends to show that he was a passenger caretaker, and that therefore this pleading is cured by the evidence.In this appellee is right.The inference may be drawn from the language of the pleading which we have above indicated that appellee was a passenger caretaker.Appellant was in no way surprised by the evidence.Appellant nowhere points out any objection or exception that is saved to the introduction of evidence which tended to show that appellee was a passenger caretaker.

It frequently happens that a pleading is such that a trial court should have sustained a demurrer to it, but if that court overrules the demurrer, the pleading may not be so defective as to make the court's ruling a cause for reversal by this court.In this case it would have been better had the trial court sustained the demurrer to this pleading and compelled appellee to make his complaint clear as to his theory that appellee was at the time of the accident a passenger caretaker of stock,...