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

• Citation: 59 Ind.App. 383,104 N.E. 785
• Decision Date: 02 April 1914
• Docket Number: No. 8086.,8086.
• Court: Court of Appeals of Indiana
• Parties: CLEVELAND, C., C. & ST. L. RY. CO. v. MEANS.

59 Ind.App. 383

104 N.E. 785

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

v.MEANS.

No. 8086.

Appellate Court of Indiana, Division No. 1.

April 2, 1914.

Appeal from Superior Court, Marion County; Willard New, Judge Pro Tem.

Action by Hannah Means against the Cleveland, Cincinnati, Chicago & St. Louis Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.Leonard J. Hackney, of Cincinnati, Ohio, and Frank L. Littleton, of Indianapolis, for appellant. Emrick & Deupree and B. F. Watson, all of Indianapolis, for appellee.

HOTTEL, J.

This was a suit by appellee to recover damages for the death of her infant son, alleged to have been caused by appellant's negligence. A complaint and an answer of general denial presented the issues of fact. A trial by jury resulted in a verdict for appellee for $400. A demurrer to the complaint, a motion for a peremptory instruction, and a motion for a new trial were each overruled, and these several rulings are each separately assigned as error, and relied on for reversal.

[1] Appellee insists that appellant has waived the error, if any, resulting from the ruling on the demurrer to the complaint because of its failure to set it out in its brief. The brief states that “appellant demurred to the appellee's complaint on the ground that the same did not state facts sufficient to constitute a cause of action,” and follows with a citation of the page and lines of the record where such demurrer will be found. It then states that “the demurrer to the complaint was overruled and appellant excepted to the ruling,” and cites the page and lines of the record where such ruling will be found. This is a substantial compliance with rule 22 of the Supreme Court and this court. The substance of the complaint, the ground of the demurrer thereto, and the ruling thereon, all being disclosed by the brief, the court has clearly before it the question which it is called on to determine, without reference to the record, and this is all that said rule, or any construction placed thereon by the Supreme Court or this court, contemplates.

The other rulings complained of present one and the same question.

[2] The complaint follows, as far as applicable, the complaint in the case of Indianapolis Water Co. v. Harold, 170 Ind. 170, 83 N. E. 993, and is, we think, sufficient. In any event, it avers, in terms favorable to appellee and her recovery, all the essential facts disclosed by the evidence, and the most serious question presented by the appeal is that of the sufficiency of the evidence to sustain the verdict. We therefore go direct to this question. The facts disclosed both by the complaint and the evidence about which there is little or no dispute are, in substance, as follows: The appellant is a corporation organized under the laws of the state of Indiana, and owns and operates railroad lines therein. On the 10th day of August, 1910, and for a long time prior thereto, it owned and operated several of its said lines of railroad in and through the city of Indianapolis, and owned and maintained switches in connection therewith, at all times herein mentioned. One of said switches extended from a track laid in North Missouri street in said city, formerly known as the main line of the Chicago Division of defendant's railroad system, thence in a westerly direction on the south embankment of the canal of the Indianapolis Water Company to the manufacturing establishment of Love Bros. Said switch track crossed West street and Blackford street, in said city. On said date, and for a long time prior thereto, said city maintained a public park, called “Military Park,” immediately north of said canal; said park being bounded on the west by said Blackford street, on the east by said West street, and on the north by New York street. Said park is situated in a densely populated part of said city and was at said time, and for years prior thereto had been, attractive to the children in the immediate vicinity of said park, as a playground, and during the summer and autumn months children congregated in great numbers in said park and the vicinity thereof to play. The southwest corner of said park was within 75 feet of said above-described railroad track, or switch, at the point where the same crossed Blackford street. On the afternoon of August 10, 1910, defendant had ten cars coupled together standing on said switch, one of which cars was within 30 feet of Blackford street. A part of said cars were so placed for the use and benefit of the Acme Myers Milling Company, located at the corner of said railroad track and Blackford street. At the time herein referred to a part of said cars had been unloaded by said milling company, but quantities of wheat still remained in all of said cars, and some of them were yet loaded with wheat. Wheat had leaked from said cars to the ground around and under said cars and near and on said track where said cars were standing. This condition, with the exception of the number of cars standing on said track, had existed for several years, and on May (August) 10, 1910, and during all of said time prior thereto, said wheat, on said track and in the unloaded cars, attracted and had attracted children from said park and its immediate vicinity, who played about said cars and track and collected and gathered up the waste wheat from the empty cars and from appellant's ground and tracks. In gathering said wheat, said children, at times, would be under and between said cars where a sudden movement of them would expose them to great danger.

Appellant, on August 10, 1910, and for some time prior thereto, knew or by the use of reasonable diligence could have known of said facts. On the afternoon of said day, appellee's son, Joseph Minnehan, deceased, who was five years of age and living with appellee then a short distance from said park, was permitted by her to go to said park with an older brother twelve years of age. After said boys reached the park, they with other boys were attracted and induced to leave said park and go upon said railroad track by seeing other children playing about said cars and gathering wheat thereunder. These boys, including decedent, proceeded to play and pick up and collect wheat under said cars to which there was at that time no engine attached. While said boys were so playing and gathering wheat from beneath and in said cars, and while said Joseph Minnehan was standing between the first and second cars from said Blackford street and about 80 feet from said street watching said other boys gathering wheat, at 2:30 p. m. on said day, appellant, in attempting to couple thereon, negligently and carelessly caused an engine pushing six cars to run into the ten cars standing on said track, and the impact caused said ten cars to move westward and thereby knocked decedent down on the rail of said track and further caused said second car to pass over him, amputating both his legs and one arm, from which said injuries he died. Appellant, before causing said cars to be moved, carelessly and negligently failed and neglected to give decedent or any of said boys any warning of any kind of their danger, although appellant knew that the condition of said cars placed upon said track, and the other heretofore described conditions, had induced and attracted boys to be at said place for several years prior to said day, and knew that children were gathering wheat and playing under and near said cars at said time, or by the use of reasonable diligence could have learned of said condition and facts and the danger to said Joseph Minnehan, by reason thereof. Appellee did not know of the existence of the conditions heretofore described, or that decedent, on account thereof, had been attracted from said park, but believed during all the time, from the time she gave her consent for her said son to go to said park to play until she was notified of his said injuries that he was at said park. The day on which decedent was injured was unusually warm, and the conditions aforesaid were naturally inclined to attract a child, and being without warning of danger, and of immature judgment, he was thereby attracted to his death. On account of his tender years said child was non sui juris, and incapable of appreciating the danger there was in being between said cars. Appellant caused said six cars to be pushed by said engine into said ten cars, knowing, when it did so, that children were likely to be playing and gathering wheat at the place where said ten cars were standing, and without making any effort to discover whether children were playing and gathering wheat, and without giving such children any notice or warning of the approach of such engine and cars.

Are these facts sufficient to show a liability on the part of appellant for the injury resulting in the death of appellee's child? Appellant answers, “No,” and files a brief in support of such answer in which it cites numerous authorities, many of which give apparent support to its contention. Appellee makes an affirmative answer and furnishes a brief also well supported by authority.

Our own investigation of the question convinces us that either party might have added materially to the number of authorities cited in support of their respective contentions. There is in these cases a great divergence of opinion and apparent conflict. However, it should be said, in this connection, that such apparent conflict, generally speaking, does not result from any different announcement of general principles ordinarily applicable and controlling in such cases, but, from the application made of such principles to the facts of the particular case, and in some instances from the reasons given for applying or refusing to apply the particular general rule to the particular case, or the reason given for placing such cases within some exception to such general rule or rules.

Appellant seeks to relieve itself from liability on the ground that appellee's...