Cleveland, C., C. & St. L. Ry. Co. v. Parker

• Decision Date: 02 February 1900
• Citation: 56 N.E. 86,154 Ind. 153
• Parties: CLEVELAND, C., C. & ST. L. RY. CO. v. PARKER.
• Court: Indiana Supreme Court

154 Ind. 153

56 N.E. 86

CLEVELAND, C., C. & ST. L. RY. CO.

v.PARKER.

Supreme Court of Indiana.

Feb. 2, 1900.

Appeal from circuit court, Hendricks county; J. V. Hadley, Judge.

Action by Addie S. Parker, administratrix of the estate of Henry E. Hurshman, deceased, against the Cleveland, Cincinnati, Chicago & St. Louis Railway Company. Judgment for plaintiff, and defendant appeals. Reversed.

Elliott & Elliott, Thad. S. Adams, and John T. Dye, for appellant. Harding & Hovey and C. C. Hadley, for appellee.

BAKER, J.

Action against appellant to recover damages for negligently causing the death of Henry E. Hurshman. Demurrer to complaint for want of sufficient facts overruled. Trial, and judgment for appellee.

The gist of the complaint is the charge that appellant negligently constructed a sidetrack, and ordered the decedent, an engineer, to run his engine over it; and that the decedent, without fault on his part, was killed by the overturning of the engine as the result of the giving way of the side track. There is no averment that the decedent, before going upon the side track, did not have full knowledge of its dangerous and defective condition. In cases of this character it is incumbent upon the plaintiff to show by the allegations of the complaint, not only that the decedent was free from fault, but that the risk was one not knowingly assumed as an incident of the service. If the decedent had notice (actual or implied) of the careless and negligent construction of the side track and its dangerous condition, and thereupon voluntarily proceeded to run the engine over the track, then these conditions became a risk which the decedent voluntarily assumed. It must follow, therefore, that, in order to establish a breach of duty creating a cause of action against appellant, it was necessary to allege that the decedent had no notice of the condition of the side track. Railway Co. v. Sandford, 117 Ind. 265, 19 N. E. 770;Coal Co. v. Young, 117 Ind. 520, 20 N. E. 423;Railway Co. v. Corps, 124 Ind. 427, 24 N. E. 1046, 8 L. R. A. 636;Railway Co. v. Morgan, 132 Ind. 430, 31 N. E. 661, and 32 N. E. 85; Railroad Co. v. Duel, 134 Ind. 156, 33 N. E. 355;Pennsylvania Co. v. Congdon, 134 Ind. 226, 33 N. E. 795;Ames v. Railway Co., 135 Ind. 363, 35 N. E. 117;Stone Co. v. Wolf, 138 Ind. 496, 38 N. E. 52;Stone Co. v. Wray, 143 Ind. 574, 42 N. E. 927; Railroad Co. v. Kemper, 147 Ind. 561, 47 N. E. 214;Stone Co. v. Summit, 152 Ind. 297, 53 N. E. 235;Bridge Co. v. Eastman, 7 Ind. App. 514, 34 N. E. 835;Coal Co. v. Albani, 12 Ind. App. 497, 40 N. E. 702;Minty v. Railroad Co., 2 Idaho, 438, 21 Pac. 660, 4 L. R. A. 409; Railroad Co. v. Wagner, 33 Kan. 660, 7 Pac. 204; Wood, Mast. & Serv. § 382.

Appellee contends that the error in overruling the demurrer to the complaint is harmless, because the special...