Chicago v. Spilker

• Decision Date: 02 February 1893
• Parties: CHICAGO, ST. L. & P. R. CO. v. SPILKER.
• Court: Indiana Supreme Court

134 Ind. 380

33 N.E. 280

CHICAGO, ST. L. & P. R. CO.

v.SPILKER.²

Supreme Court of Indiana.

Feb, 2, 1893.

Appeal from circuit court, Wayne county; D. W. Comstock, Judge.

Action by Melissa Spilker against the Chicago, St. Louis & Pittsburgh Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.Burchenal & Rupe, for appellant. Thos. J. Study, Mersh & Cook, and C. G. Offutt, for appellee.

HOWARD, J.

This action was begun in the Hancock circuit court, where appellee, as plaintiff, filed her complaint against appellant in two paragraphs. The first paragraph charged, in substance, that on the 18th day of October, 1888, within the limits of the city of Greenfield, at a point where appellant's railroad crosses Stewart street, appellee's husband was lawfully attempting to drive his team of horses and wagon across the track of said railroad, when appellant's agents carelessly and negligently ran a locomotive engine and train of cars upon said team, demolishing the wagon and injuring appellee, who was seated in said wagon, by violently throwing her out against the wheel of the wagon, and upon the ground, whereby she was bruised and injured in her limbs and back, and internally, and that by reason thereof she has ever since been under the care of physicians, and unable to help herself, and is permanently injured, maimed, and crippled for life; that the train was running at a dangerous, reckless, negligent, and unusual rate of speed, at the time it struck said wagon, at the rate of 50 miles an hour, and when approaching said crossing appellant's agents, servants, and employes in charge negligently failed to give any signal or alarm, by ringing the bell or blowing the whistle, or otherwise, and never attempted to check or stop said train; that said injuries were caused by the careless and negligent acts of appellant, as herein stated, and without negligence on her part, or on that of her husband; that they were approaching said railroad track from the south, and that, when they were within a short distance from said crossing, she and her said husband looked and listened, but that by reason of large and high piles of lumber, a sawmill, and other obstructions on the south of, and near and along, the side of said track, they were unable to see; and that, on account of the negligent failure of appellants to ring the bell or sound the whistle, they were unable to hear the approaching train, by which she was injured. Wherefore, she demanded judgment for $7,500, and other relief. The second paragraph differs from the first principally by charging that appellant's agents in control of the train had willfully and purposely run said train upon said team, etc. A general denial was filed to the complaint, and on motion of appellant the venue was changed to Wayne county. A third paragraph of complaint was filed in the Wayne circuit court. A demurrer to this paragraph was overruled, as was also a motion to make the paragraph more specific. An answer in general denial being filed, the cause was submitted to a jury, and a verdict for $3,000 was returned for appellee. The jury also returned answers to certain interrogatories.

The errors assigned in this court are the following: (1) Error in overruling appellant's demurrer to the first and second paragraphs of the complaint. (2) Error in overruling demurrer to the third paragraph of the complaint. (3) Error in overruling appellant's motion for a new trial. (4) Error in overruling appellant's motion for judgment in its favor on the special findings of the jury in answer to interrogatories, notwithstanding the general verdict. (5) Error in overruling appellant's motion to set aside the service of the summons, and the sheriff's return on said summons. (6) Error in overruling the motion to strike out parts of the third paragraph of the complaint. (7) Error in overruling the motion to make the third paragraph of the complaint more definite and certain. (8) Error in overruling the motion to suppress certain parts of the depositions of James W. Lake, Sarah A. Lake, and Joseph A. Hamilton. (9) Error in overruling motion to suppress parts of depositions of Maria J. Wray, Stephen A. Ross, J. H. Payn, Samuel P. Gordon, and James Black. Appellant discusses only a part of this list in the briefs filed. Several of the alleged errors, also, are improperly assigned as such; but, as all such improperly assigned errors were given as reasons in the motion for a new trial, they are therefore properly in the record, under the third assignment of error,-the overruling of the motion for a new trial,-under which assignment they will be considered, and not as independent assignments of error. No ruling is shown in the record on the demurrer to the first and second paragraphs of the complaint, so that no question arises under the first assignment of error.

The second assignment of error is the overruling of the demurrer to the third paragraph of the complaint. This paragraph charges that within the limits of the city of Greenfield, at a point where appellant's track crosses Stewart street, appellee's husband was lawfully driving his team of horses and wagon across said track, when appellant, by its agents, carelessly and negligently ran its locomotive engine and train of cars upon said team, demolishing the wagon, and injuring appellee, who was there lawfully seated in said wagon, by violently throwing her against the wheel of said wagon, and upon the ground, whereby she was injured, etc.; that said train was running at a dangerous, reckless, and unusual rate of speed, to wit, 50 miles an hour, at the time it struck said wagon, and so injured her; that appellant's agents, when approaching said Stewart street crossing with said train, never attempted to check or stop the same, but carelessly, recklessly, and negligently ran it at said dangerous, reckless, and unusual rate of speed, of 50 miles per hour, over and across said street, where a great many persons were constantly passing and crossing; that said injuries to appellee were not caused by any negligence on her part. In Railroad Co. v. Adams, 26 Ind. 76, where “the train was running along a street of a populous village, and the track there was commonly used by the inhabitants as a foot way,” the court said: “The irresistible inference, therefore, is, considering all the evidence, that the speed was unusual, though not so much as 25 miles an hour, and that such a speed, in a place habitually used by foot passengers, must be deemed inconsistent with any care for consequences to whoever happened to be in the way.” And the court held that there was gross negligence, amounting to recklessness. The paragraph demurred to in the case now before the court charges that appellant's train was run across a street in the city of Greenfield “at a dangerous, reckless, and unusual rate of speed, of fifty miles per hour, over and across said street, where a great many persons were constantly passing and crossing.” It would seem that the particular acts were sufficiently stated, and that it was the province of the jury to say whether the speed of the train at a street crossing such as stated, or its unusual character, or other facts and circumstances stated, were acts of negligence or not. In the case of Thompson v. Railroad Co., 110 N. Y. 636, 17 N. E. Rep. 690, the court said of a like case: “It was at a crossing made by a public street, in a tolerably thickly populated part of the country, and it might well be a question for the jury whether the defendant was or was not, upon all the facts, guilty of negligence in running its train at the very great speed claimed on the part of the plaintiff, through such a portion of the country. The giving of the signals required by law does not, under all the circumstances, render the defendant free from negligence, if it ran its train at an undue, and what might be found to be an improper and highly dangerous, rate of speed, through a village or city more or less densely populated.” It would seem that whether a high rate of speed is negligence must depend on the circumstances surrounding each instance. In Elliott's Roads and Streets, (page 606,) it is said: “That in a populous city, where signals cannot be given, it is the duty of the company to run its trains at such a rate of speed as not to put in jeopardy the safety of persons having a right to use the highways. It is obvious that, where the streets of a large city are much used, the high rate of speed allowable in rural districts will not be permissible, even in the absence of express state or municipal regulations.” The paragraph of the complaint which we are considering should be taken as a whole, and construed according to its general scope and tenor, and with a view to substantial justice between the parties; and, when so considered, we think it will be found sufficient. Rev. St. 1881, § 376; Railway Co. v. Jones, 108 Ind. 551, 9 N. E. Rep. 476, and cases cited. But the general averment alone, that “the defendant, by its agents, etc., carelessly and negligently ran her said locomotive engine and train of cars attached thereto upon them, demolishing the wagon, and injuring the plaintiff,” etc., is sufficient to withstand the demurrer, without stating the particular acts of negligence, which latter may be given in the evidence. Railway v. Mathias, 50 Ind. 65, and cases cited.

The overruling of appellant's motion to strike out parts of the third paragraph of the complaint, and the overruling of the motion to make that paragraph more definite and certain, may be considered in this connection. The ruling as to striking out parts of the third paragraph of the complaint is not discussed by appellant. The questions involved in the ruling as to making the paragraph more definite and certain have perhaps been sufficiently considered in what has been said on the overruling of the demurrer. The substance of the charge of negligence in this...