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

• Decision Date: 06 April 1899
• Citation: 152 Ind. 607,53 N.E. 415
• Parties: CLEVELAND, C., C. & ST. L. RY. CO. v. BERRY.
• Court: Indiana Supreme Court

152 Ind. 607

53 N.E. 415

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

v.BERRY.¹

Supreme Court of Indiana.

April 6, 1899.

Appeal from circuit court, Scott county; Willard New, Judge.

Action by John Berry against the Cleveland, Cincinnati, Chicago & St. Louis Railway Company. There was a judgment for plaintiff, and defendant appeals. Reversed.

C. E. Cowgill, B. K. Elliott, and John T. Dye, for appellant. Jason B. Brown, Joseph H. Shea, Eugene Hough, and Smith & Korbly, for appellee.

BAKER, J.

Action to recover damages for personal injury. Appellee was inspector of track for the Baltimore & Ohio Southwestern Railway Company in Scott county. Appellant ran trains over this track. While appellee was engaged in his work, appellant's train approached. Appellee stepped aside 10 feet from the track. As the train passed, going about 40 miles an hour, a large iron pin came from the tender, and hit appellee across the back. Complaint in three paragraphs. Demurrer to each overruled. Answer of general denial. Jury returned general verdict for appellee on second and third paragraphs, and also answers to interrogatories. Appellant's motions for judgment notwithstanding, for new trial, and in arrest, were overruled.

Appellant insists that neither the second nor third paragraph sufficiently states negligence. The second paragraph charges “that on the 28th day of July, 1896, while the plaintiff was at a point on said right of way about one mile south of Lexington, where his duties as aforesaid required him to be, having taken a position on the east side of, and about ten feet from, said railroad track, in order to permit a certain passenger train to pass, then and there being run and managed by said defendant's servants, he, the said plaintiff, was violently struck by a large, heavy iron pin, which had been carelessly and negligently permitted to be and remain on the tender of the locomotive attached to the defendant's said train, by the servants of said defendant, in such a manner that the motion of said train, which was being propelled at a very high rate of speed, threw said heavy iron pin off of said tender, where it had been carelessly and negligently permitted to be and remain by said defendant, striking the plaintiff.” The third avers “that the defendant negligently and carelessly suffered and permitted a large, heavy iron pin to be so placed on the tender of its aforesaid locomotive that said pin was by the speed of said train thrown off therefrom against the plaintiff.” The gist of the argument is that the complaint is bad because no allegation is made that it was dangerous to carry the iron pin on the tender, nor that the pin was placed or suffered to remain in an unsafe position, nor where one might reasonably expect that it would be thrown off by the movement or speed of the train. The complaint charges that the plaintiff was injured by the defendant's permitting the iron pin to be and remain (second paragraph), and to be placed (third paragraph), on the tender in such a manner that the movement of the train threw it from the tender against the plaintiff, and that this act, causing the injury, was “negligently” done. A general allegation of negligence is sufficient to repel a demurrer for want of facts. This means, not that the pleading is good by charging that the plaintiff was injured “by the negligence of the defendant,” but that it is sufficient if the act stated as the cause of the injury is alleged to have been “negligently” done. Bliss, Code Pl. § 211a; Works, Prac. & Pl. § 400; Black, Proof & Pl. § 139; Maxw. Code Pl. pp. 251, 252; Bryant, Code Pl. pp. 336, 337; Boone, Code Pl. § 174; Baylies, Code Pl. § 40. If the pleader goes beyond this general allegation, and sets forth the specific facts that he claims made the act causing the injury negligent, the specific averments may overbear the general, and render the pleading obnoxious to demurrer. A defendant is entitled to a statement of the specific facts, but, if the complaint does not contain it, his remedy is by motion. Railway Co. v. Bates, 146 Ind. 566, 45 N. E. 108, and authorities there collated. The statements in Weis v. City of Madison, 75 Ind. 246, and in like cases, cited by appellant, to the effect that, if the facts pleaded do not in themselves show negligence, the qualifying adverbs “carelessly” and “negligently” cannot make up the insufficiency, apply, not to complaints that rest upon the general allegation of negligence, but to those that set forth the facts specifically.

Appellant urges, also, that each paragraph is bad by reason of this averment “that the defendant was on the 28th day of July, 1896, and had been for some time prior thereto, running its cars and locomotives over the track and right of way of the Baltimore & Ohio Southwestern Railway Company between North Vernon, Indiana, and Louisville, Kentucky.” The contention is that, there being no allegation of a contract between the companies by which appellant had the right to control the operation of its trains over the other's road, the presumption arises that the latter company alone had authority to direct and control train operatives between the cities named (where the accident occurred), that this presumption overcomes the averment that appellant's servants were running the train in question, and that, therefore, the doctrine of respondeat superior does not apply to appellant. In the case of Atwood v. Railway Co., 72 Fed. 447, it appears from the evidence (the complaint was silent in these particulars, but seems to have been held sufficient by reason of the allegation that the defendant “operated its trains between Kansas City and Topeka over the railroad of the Union Pacific Company”) that the trains of the Rock Island Company were run between Kansas City and Topeka over the tracks of the Union Pacific Company under a contract in which it was agreed that the Union Pacific Company alone should make rules and regulations for the operation of all trains over its tracks between the points named, and that the trains of both companies should move under and in accordance with the orders of the superintendent or train dispatcher of the Union Pacific Company. The Rock Island train was manned by employés hired and paid by that company. Atwood, a conductor of a Union Pacific train, was killed in a collision by the alleged negligence of the employés in charge of the Rock Island train. Held, that the employés in charge of the Rock Island train “were absolutely subject to the jurisdiction, control, and direction of the Union Pacific Company, as to the manner and time of running over this track”; that the Rock Island Company could not be held on the doctrine of respondeat superior, because the negligent employés were not at the time its servants; that “the responsibility of the master grows out of, is measured by, and begins and ends with, his control of the servant.” To the same effect, also, are the cases of Hitte v. Railroad Co., 19 Neb. 620, 28 N. W. 284;Byrne v. Railroad Co., 9 C. C. A. 666, 61 Fed. 605;Miller v. Railway Co., 76 Iowa, 655, 39 N. W. 188;Hilsdorf v. City of St. Louis, 45 Mo. 94;Town of Pawlet v. Rutland & W. R. Co., 28 Vt. 297;Dean v. Railway Co., 98 Ala. 586, 13 South. 489;Hardy v. Shedden Co., 24 C. C. A. 261, 78 Fed. 610.

The first and third sections of an act of March 10, 1873, read:

“Section 1. All railroad companies now organized or that may be hereafter organized under the laws of this state, having connecting roads, may enter into contracts by their respective boards of directors, by which the locomotives and trains of one railroad company, for the transportation of freight and passengers, may be run and operated over and upon the track and road of another railroad company, upon such terms as the said companies may agree upon.”

“Sec. 3. Every railroad company that shall run and operate its locomotives and trains upon the track and road of another railroad company shall be liable to third persons for all damages occasioned by such locomotives and trains, in the same manner and to the same extent as though the track and road upon which such locomotives and trains were run and operated belonged to the company owning and operating the same.” Rev. St. 1881, §§ 3999, 4001 (Horner's Rev. St. 1897, §§ 3999, 4001; Burns' Rev. St. 1894, §§ 5286, 5288).

These statutory provisions become charter privileges and liabilities of railroad companies. Appellant had express authority to arrange with the Baltimore Company for the right to operate and control its own trains over the latter's tracks. In so operating, appellant would be as responsible as for its doings on its own right of way. If, under the statute, the two companies were empowered to make a contract by which the Baltimore Company would have exclusive control of the operatives in charge of appellant's trains while upon the Baltimore Company's tracks, so that appellant would not be liable for the negligence of the operatives, and if the complaint exhibited that appellant's train in question was operated under such a contract, the demurrer should have been sustained. The complaint does not allege that there was a contract at all. But the averment of appellant's continued operation of its trains over the Baltimore Company's road should favor the presumption that appellant was a lawful user of the tracks by permission, rather than a trespasser. However, if the presumption be that appellant was a trespasser, it matters not; for a defendant's position is not bettered by having the complaint show that, when he committed the wrongful act, he was in a place where he had no right to be. The test question is not where, but who. Each paragraph of the complaint, far from showing that appellant surrendered control of its train to the Baltimore Company, directly charges appellant with the commission of the injurious act. The demurrers were properly overruled.

In support of the motion for judgment on the answers to...