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

• Decision Date: 05 January 1931
• Docket Number: No. 13413.,13413.
• Citation: 173 N.E. 708,96 Ind.App. 535
• Court: Indiana Appellate Court
• Parties: CLEVELAND, C., C. & ST. L. RY. CO. v. GILLESPIE.

96 Ind.App. 535

173 N.E. 708

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

v.GILLESPIE.

No. 13413.

Appellate Court of Indiana, in Banc.

June 27, 1930.

Rehearing Denied Jan. 5, 1931.

Appeal from Wabash Circuit Court; Frank O. Switzer, Judge.

Action by Louise Gillespie against the Cleveland, Cincinnati, Chicago & St. Louis Railway Company. From a judgment for plaintiff, defendant appeals.

Reversed, with instructions.Frank L. Littleton, of Indianapolis, Walter S. Bent, of Wabash, Forrest Chenoweth, of Indianapolis, and Harry N. Quigley and S. W. Baxter, both of Cincinnati, Ohio, for appellant.

McCracken & Eikenbary and Plummer & Plummer, all of Wabash, for appellee.

NEAL, C. J.

By the allegations of her complaint, the appellee says, in substance: That the defendant, appellant herein, is a railroad corporation and operated a line of railroads from the city of Benton Harbor, Mich., in and through the county of Wabash and the city of Wabash, Ind.; that, in the city of Wabash, appellant, on February 24, 1926, and prior thereto, maintained a switch track extending from its main line of track in a curve to the northwest, across South Huntington street just south of the point where the named street and a bridge built therein crosses the Wabash river in the city of Wabash; that the track runs from the crossing referred to westwardly to sidings of the Wabash Canning Company and other factories, the nearest of which lies about one-third of a mile west of the point where the track crosses South Huntington street in the city of Wabash; that South Huntington street, from a point about one-eighth of a mile north of the center of the bridge above mentioned, is on an up grade, proceeding southward to the middle of the Huntington street bridge, and, from that point downward to the crossing of the switch track of appellant across Huntington street; that South Huntington street was, on February 24, 1926, and prior thereto, a public highway, paved with asphalt, and open to traffic of the public, either on foot or in conveyances; that the bridge was constructed with concrete banisters between three and four feet high on either side of the bridge, lamp posts, resting on the banisters, electrically lighted at night; that, on the above-named day, one Dwight Usher was driving his Buick automobile southward on Huntington street at about 9:30 p. m.; that in his car were two passengers, the appellee and her cousin; that the night was dark and a heavy rain was falling; that the lights from the lamp posts on the bridge were burning and were reflected up in the faces of the appellee and the other occupants of the car; that, at the time the automobile owned and operated by Dwight Usher was traveling toward the switch of appellant, as heretofore described, the employees of appellant, acting in the scope of their employment, “had moved a string consisting of a number of freight cars, on the east end of which a locomotive was attached, over the switch track” which crossed south Huntington street; that the freight cars were standing across the track and blockading and wholly obstructing the street, and that the employees or train crew in charge of the locomotive and cars negligently stopped the car over and in such a manner as to obstruct the highway; that the employees knew, or by the use of reasonable care could have known, that it was highly dangerous to the public using the highway to permit the cars to remain standing on the crossing; that the train crew so employed by the appellant negligently failed to place any light on the highway on the north side of the cars as a signal to approaching vehicles and to warn the public of the dangerous situation; that, as a result thereof, Dwight Usher drove the automobile in which the appellee was riding as a passenger southward toward the crossing and was within a very short distance of the freight cars before seeing the obstructions; that he was unable to stop his automobile, and the automobile struck the freight cars with great force, and bruised and crushed the appellee.

[1] In this case, the appellant did not present to the trial court a motion to make the complaint more specific and that the pleader be required to make the necessary allegations to sustain the several conclusions of fact contained therein as provided by section 360, Burns' Ann. St. 1926. In the absence of a motion to make more specific, all objections on account of the pleading of conclusions of fact are waived. Fauvre Coal Co. v. Kushner (1919) 188 Ind. 314, 123 N. E. 409, 413.

[2][3][4] The sixth division of section 362, Burns' Ann. St. 1926, which provides that the memorandum which is to be filed with the demurrer shall state “wherein such pleading is insufficient for want of facts, and the party so demurring shall be deemed to have waived his right thereafter to question the same for any defect not so specified in such memorandum,” has been given force and effect by the decisions of the Supreme and Appellate Courts. In consideration of the demurrer in this case, which rests solely on the ground that the complaint does not state facts sufficient to constitute a cause of action we are confined to the facts pointed out by the memorandum which are “wanting in the pleading to make it sufficient on the theory upon which it is predicated,” State ex rel. v. Morris, Mayor (1927) 199 Ind. 78, 155 N. E. 198, 200, and, further, that all objections not contained in the memorandum filed with the demurrer are waived, Amsbury v. Harper (1927) 87 Ind. App. 119, 157 N. E. 292. We must also bear in mind that, “in construing a complaint where a demurrer is interposed, it will be deemed sufficient, whenever the necessary allegations can be fairly gathered from all the averments, *** [and] all facts will be deemed stated that can be implied from the allegations made by a fair and reasonable intendment and facts so impliedly averred will be given the same force as if directly stated.” Fauvre Coal Co. v. Kushner, supra; James v. State Life Insurance Co. (1925) 83 Ind. App. 344, 147 N. E. 533. We must also be cognizant of the several decisions of the Supreme and Appellate Courts that it is sufficient, as against a demurrer, in pleading negligence, to allege that the defendant “negligently” did the act complained of without stating the particulars of the negligence or the circumstances which made it negligent. Pittsburgh R. Co. v. Simons (1907) 168 Ind. 333, 79 N. E. 911.

Appellee evidently attempted by the several allegations of her complaint to charge, as one of the acts of alleged negligence of appellant, the violation of section 2903, Burns' Ann. St. 1926, which reads as follows: “Whoever, being a conductor or other person having charge of, or running a railroad train, carrying, or used for carrying, freight, permits or suffers the same, or any car or locomotive engine composing the same, to remain standing across any public highway, street, alley or farm crossing, or who, whenever it becomes necessary to stop such train across any public highway, street, alley or farm crossing, fails or neglects to leave a space of sixty feet across such public highway, street, alley or farm crossing, shall be fined not more than twenty dollars nor less than three dollars.”

[5][6] When the several allegations of a complaint, which is predicated on the theory of negligence flowing from the violation of a particular statute, are in the language of the statute, the pleading is sufficient unless the particular statute contains certain exceptions. If such exceptions exist, it is generally necessary for the pleader to negative the same. In the case of Ezra v. Manlove, 7 Blackf. 389, the Supreme Court said: “It is a general rule that in asserting a right founded on a statute, the pleader should aver every fact necessary to inform the Court that his case is within it.”

[7] An examination of the several allegations contained in appellee's complaint fails to disclose that appellee has brought herself within the law in charging the violation of section 2903, supra. The offense defined in the first part of the above-mentioned section is in permitting the train or cars to remain standing across the street or public highway so as to prevent the use and enjoyment of the street or highway by the citizens as a public thoroughfare. Momentarily stopping a freight train or cars on a public street, highway, etc., is not a violation of section 2903, supra. The appellee, by the averments of her complaint, charges that the cars were “standing across.” The allegations are not sufficient to allege a violation of section 2903. Cleveland, etc., R. Co. v. Tauer, 176 Ind. 621, 96 N. E. 758, 39 L. R. A. (N. S.) 20;Becker v. State, 33 Ind. App. 261, 71 N. E. 188;C., C. C. & I. R. Co. v. Wynant, 100 Ind. 160.

[8] The appellant asserts that section 2903, supra, is “directly against the conductor or other person in charge of a train, and not against the railroad company, and that a violation of the statute might be made the basis of a criminal action against the conductor or other person in charge of the train or car, but that its violation could not be made the basis of a charge of negligence against the railroad company,” and cites in support thereof Killen v. New York Cent. R. Co., 225 App. Div. 8, 232 N. Y. S. 76, 77, and Hendley v. Chicago & N. W. Ry. Co., 198 Wis. 569, 225 N. W. 205, which support the above statement of appellant. However, our Supreme Court, in the case of Cleveland, etc., R. Co. v. Tauer, supra, has taken a different view of the violation of the statute than advanced by appellant. It was held in the above case that, when the complaint sufficiently alleges a violation of section 2671 Burns' Ann. St. 1908, which is the same as section 2903, Burns' Ann. St. 1926, and an injury and damage flow directly from such violation and produce or help to produce an injury, contributory negligence not being involved, the railroad company must respond in damages. See, also, Chicago...