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

• Decision Date: 28 October 1909
• Docket Number: No. 21,319.,21,319.
• Citation: 89 N.E. 485,173 Ind. 105
• Court: Indiana Supreme Court
• Parties: CLEVELAND, C., C. & ST. L. RY. CO. v. POWERS.

173 Ind. 105

89 N.E. 485

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

v.POWERS.

No. 21,319.

Supreme Court of Indiana.

Oct. 28, 1909.

On petition for rehearing. Petition denied.

For former opinion, see 88 N. E. 1073.

MYERS, J.

The learned counsel for appellee have made an earnest appeal for a rehearing in this cause, basing their application upon the proposition that we were in error in holding the twenty-fifth instruction harmful, for the reason that the one act of negligence, the violation of the speed ordinance, is sufficiently pleaded, and that the verdict is shown by the interrogatories to rest upon that allegation of negligence, by the finding that the speed of the train was 20 miles per hour, the ordinance limit being 12.

It is true, as we held, that the one act of negligence sufficiently pleaded was the violation of the speed ordinance, but the difficulty with appellee's position arises not from the application of the rule he invokes, but from the allegations of the complaint that “his injuries were caused by the negligence of the defendant in not furnishing plaintiff a safe and suitable place to work, and in putting him in danger, and not using care commensurate with the danger to which they exposed him by running said train No. 31 at an unlawful speed, in violation of a city ordinance, and on the wrong track, and out of schedule time, recklessly, in a place of danger, through deep darkness, thick fog, without ringing the bell, sounding the whistle, or giving any warning to plaintiff of the approaching danger,” coupled with the instruction that “if the injury complained of was caused by any one or more of said acts of negligence,” and he was without fault, they should find for the appellee. If we eliminate from the complaint all the alleged acts of negligence except the one well pleaded, it would read, “his injuries were caused by the negligence of the defendant by running said train No. 31 at an unlawful rate of speed in violation of a city ordinance, recklessly, in a place of danger,” etc. This instruction wholly fails to separate the negligence charged in running the train in violation of the ordinance, in which no question of assumption of risk is involved, from the other alleged acts of negligence in which that question is involved, and, taken with the finding on the question of care, places the latter as depending upon a false basis.

If the answers to the interrogatories had shown only negligence in the matter of the violation of the speed ordinance, appellee's position would have force, but they go much farther. The jury find that appellee was traveling a usual way in going to his work (not while engaged at work), known to appellant to be so used by the men employed; that it would have been unsafe and dangerous for him to have stood between the tracks; that the train was off its schedule 40 minutes; was running over a track not usually taken by it; that the space between the main tracks was unsafe to walk in owing to loose uneven gravel, boulders, and cinders, and the same was true as to the space north of the west-bound track; that appellee knew the leaving time of the train, and did not know whether it had gone; that he saw the eastbound train on the west-bound, or track usually taken by train No. 31; that he knew that the latter was frequently late, and was liable to come at any time if it had not gone; that appellee might have gone in such way as not to pass through the yards, but that such way was not as safe and convenient as through the yards, owing to obstructions, such as elbow pipe, ditches, mud, and water, and the east leg of the “Y”; that appellee traveled 1,200 feet on the east-bound track, and stepped directly across from the eastbound track to escape rapidly approaching train No. 41, and to, and within the rails of, the track on which train No. 31 was running, and within 200 feet of train No. 31, upon which the headlight was burning, and walked 30 feet before being struck, where no train was scheduled to run, and where he believed none would run, and that that was the exercise of the greatest possible care.

Appellee argues that, as one of the acts of negligence charged was the unlawful speed, it is sufficient that the jury find that fact, and that the general verdict covered the fact of contributory negligence, and that the other findings may be ignored. If it stood upon the question whether the findings support the judgment upon the question of the violation of the speed ordinance, we should unhesitatingly say that they are sufficient, but it does not so stand, for from all of the findings it is impossible to say under the instruction whether it is predicated upon the speed ordinance, or on the other facts found, and we are asked to eliminate the latter, and conclude that the judgment should be upheld upon the unlawful speed rate, because that is the sole cause of action sufficiently pleaded, which is equivalent to saying that if there is one good paragraph of a complaint, or one cause of negligence sufficiently pleaded, it is wholly immaterial that a jury are told that they should find for the plaintiff, if they find the facts as set forth in any paragraph, though it is bad, or any of the causes pleaded, though all are insufficiently pleaded save one, and that the judgment should be upheld because, among the other facts...