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

• Decision Date: 28 March 1900
• Parties: CLEVELAND, C., C. & ST. L. RY. CO. v. STEWART.
• Court: Indiana Appellate Court

24 Ind.App. 374

56 N.E. 917

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

v.STEWART.

Appellate Court of Indiana.

March 28, 1900.

Appeal from superior court, Marion county; Vinson Carter, Judge.

Action by Mattie J. Stewart against the Cleveland, Cincinnati, Chicago & St. Louis Railway Company to recover for injuries resulting from fright caused by defendant's negligence. From a judgment for plaintiff, and from an order overruling a motion for a new trial, defendant appeals. Reversed.

Elliott & Elliott and John T. Dye, for appellant. Griffiths & Potts, for appellee.

WILEY, J.

Counsel for appellee, in their brief, aptly say that the “question presented in this case is whether or not appellee is entitled to recover damages for personal injuries caused by fright, and resulting in nervous prostration and a permanent impairment of health.” The record, by the assignment of errors, presents but two questions: (1) The sufficiency of the amended complaint, and (2) the overruling of the motion for a new trial. If the amended complaint, upon its conceded theory, does not state a cause of action, questions arising under the motion for a new trial need not be noticed. The amended complaint is somewhat lengthy, but it will be necessary to set it out quite fully, to the end that its general scope and theory may more clearly appear. As preliminary to the averments stating facts upon which appellee bases her right of action, it is averred that appellant is a common carrier; that the appellee had been seriously ill, and was just recovering; that she, in company with her husband and two children, had purchased tickets, which entitled them to be carried over appellant's road from Muncie, Ind., to Indianapolis, Ind., and then continues as follows: “That while plaintiff and her said companions were waiting at said station, * * * said train arrived at said station, and was stopped at the platform thereof for the purpose of discharging and receiving passengers; that the plaintiff and her said husband and children attempted to get upon and enter one of the defendant's passenger coaches, then and there a part of defendant's train, in which coach plaintiff and her said companions were then and there entitled to be carried by reason of the tickets held by each of them, respectively; that plaintiff, assisted by her said husband, got upon the steps of said car for the purpose of entering the same, and was proceeding to do so, when a brakeman, a servant and agent of said defendant, and one of the defendant's employés then and there in charge of said train, acting within the line of his duty and within the scope of his employment, and then and there well knowing the weak and enfeebled condition of plaintiff, ordered and directed plaintiff and her said companions not to enter said car, and carelessly and negligently directed plaintiff and her said companions to follow him to another of defendant's cars, then and there a part of defendant's said train; that plaintiff and her husband obeyed the aforesaid directions and orders of said brakeman, got off of said car, and followed said brakeman to another of defendant's cars, then and there a part of said train, and containing passengers; that said brakeman got upon the platform of said last-named car, and attempted to open the door thereof for the purpose of allowing the plaintiff and her said companions to enter the same; that the defendant had then and there carelessly, negligently, and unlawfully suffered and permitted the door of said car to be fastened in such manner that no ingress to said car could be had from the platform thereof, and said brakeman was wholly unable to open said door, or to obtain entrance thereto, and wholly failed to afford plaintiff any means or opportunity of entering said car; that plaintiff and her said husband, in obedience to the orders and direction of said brakeman, and following him upon the step of said car, were then and there ready to enter the same as soon as the opportunity should be afforded therefor; that while plaintiff and her said companions were attempting to enter said car in the manner aforesaid, the defendant, well knowing at the time the situation of the plaintiff, and that she was entitled to be carried upon said train, carelessly and negligently started said train, and put the same in rapid motion, and the said brakeman ordered and directed plaintiff and her said companions to get away from said car, and the said train was, by defendant, put in rapid motion, and moved away from said platform and station, and city of Muncie, and plaintiff and her said companions were carelessly and negligently left upon said platform without any means or opportunity afforded them of entering said train; that by reason of the careless and negligent starting of said train while the plaintiff and her said companions were in the situation aforesaid, plaintiff's said daughter was dragged along said platform by the force of said moving train, and was in imminent danger of being drawn under the wheels of said moving train, and mangled and killed before plaintiff's eyes; that plaintiff saw the danger of her said daughter, so caused by the carelessness and negligence of the defendant, as aforesaid, and was thereby greatly terrified and frightened, and would have fallen upon said platform had not her husband caught her in his arms; that plaintiff was carried by her said husband into the waiting room of said station, where she was compelled to remain several hours before the defendant again offered her an opportunity to continue and complete her said journey to said city of Indianapolis; that by reason of the shock and fright attendant upon the danger to plaintiff's daughter, as aforesaid, and the excitement, worry, and delay caused by plaintiff being left at said station, as aforesaid, all of which was caused by the carelessness and negligence of the defendant, the plaintiff, enfeebled by sickness and disease, as aforesaid, was then and there prostrated, and made sick, her nervous system was shattered, and she was taken suddenly and seriously ill, and was thrown into a relapse of the disease from which she had so nearly recovered, as aforesaid, and has ever since remained sick, and has been compelled to keep to her bed, and has been confined thereto, and will continue to remain sick and be confined to her bed during the remainder of her life, and has been and will continue to be deprived of the privileges of life, and has suffered and will continue to suffer great bodily pain and anguish of mind,-all of which has been and will be caused by the careless, negligent, and unlawful acts of said defendant, as above set forth, and without any fault or negligence on the part of plaintiff contributing thereto; by reason of which plaintiff has been damaged in the sum of ten thousand dollars.”

Under the well-established rule in this state, a complaint must be construed upon the theory which is most apparent and clearly outlined by the facts stated therein. As only one theory can be contained in a single paragraph, the court must construe the pleading most strongly against the pleader, and determine the theory from its prominent and leading allegations. Railroad Co. v. Dugan, 18 Ind. App. 435, 48 N. E. 238;Dull v. Railroad Co., 21 Ind. App. 571, 52 N. E. 1013; Railroad Co. v. Sullivan, 141 Ind. 83, 40 N. E. 138, 27 L. R. A. 840;Batman v. Snoddy, 132 Ind. 480, 32 N. E. 327. The complaint cannot have the double theory of asking damages on account of delay and inconvenience caused by appellee's failure to get passage upon the train she attempted to enter and having to wait for another train, which went a few hours later, and also to recover damages for personal injuries caused by fright, resulting in nervous prostration and permanent impairment of health. These two theories are inconsistent, and rest upon entirely different reasons. It is not only apparent from the prominent and leading allegations of the complaint that the pleader bottomed it upon the latter theory, but counsel for appellee concede in their brief that that is the theory, and they ground their entire argument thereon. So we have this anomalous question presented by the complaint: Will an action lie for damages for fright, resulting in nervous prostration and permanent impairment of health, when such fright does not arise from impending or apparent danger to the party demanding damages, but from impending, apparent, and possible danger or peril to another? Of course, this implies negligence on the part of the party causing the fright. If the above inquiry can be answered in the affirmative, then the complaint states a cause of action; but, if it must be answered in the negative, the complaint is fatally defective, and the demurrer thereto should have been sustained. Appellant's learned counsel urge and argue with much force and strong reason that the fright to appellee was not the proximate result of any negligence on the part of appellant, and, even if it were, there could be no recovery, because the nervous prostration and permanent impairment of health alleged to have resulted from the fright was not the proximate result of any negligence on the part of appellant, and because public policy forbids a recovery in such case. The complaint does not pretend to base appellee's right to recover upon any negligence towards her. She was not on the car, nor upon the steps of the car, but upon the station platform, waiting to enter the car, when the door was opened. While in that position, before any part of her person came in contact with the car, the train started. She was not frightened because the train started before she got on, but because her daughter was in “imminent danger of being drawn under the wheels of said moving train, and mangled and killed before her eyes; that plaintiff saw the danger of her said daughter, * * * and was greatly terrified and frightened,” etc. It is nowhere averred that the daughter...