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

• Decision Date: 21 January 1913
• Docket Number: No. 22,098.,22,098.
• Citation: 179 Ind. 142,100 N.E. 465
• Parties: CLEVELAND, C., C. & ST. L. Ry. CO. v. BOWEN.
• Court: Indiana Supreme Court

179 Ind. 142

100 N.E. 465

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

v.BOWEN.

No. 22,098.

Supreme Court of Indiana.

Jan. 21, 1913.

Appeal from Circuit Court, Johnson County; W. E. Deupree, Judge.

Action by Belle Bowen, administratrix, against the Cleveland, Cincinnati, Chicago & St. Louis Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Transferred from the Appellate Court under section 1405, Burns' Ann. St. 1908; Laws 1901, c. 259.

Frank L. Littleton and Smith, Duncan, Hornbrook & Smith, all of Indianapolis, and L. Ert Slack, of Franklin, for appellant. Wm. A. Johnson, of Franklin, Dundas, O'Hair & Tanner, of Paris, Ill., and Carl H. Weyl, of Indianapolis, for appellee.

COX, J.

Appellee's decedent was a passenger on one of appellant's trains. This train was wrecked by the explosion of a car load of powder, which was a part of a freight train resting in transit on a siding of appellant's road, and which the passenger train was passing as the explosion occurred. As a result of the explosion and the ensuing wrecking of the car in which he was riding, the decedent received injuries from which he died, and this action was brought by appellee to recover damages for his death. The cause was submitted to a jury on issues formed by general denials of each of three paragraphs of complaint, and a general verdict for appellee was returned, which was accompanied by answers to many interrogatories. This appeal is brought from a judgment for appellee on the general verdict.

[1] It is first claimed that the trial court erred in overruling appellant's motion to make each of the three paragraphs of appellee's complaint more specific in its allegations of negligence. Answering the point made in appellant's brief in presenting this alleged error, at least as specifically and as efficiently as it is made, the court did not commit reversible error in this ruling. The allegation of the facts constituting appellant's negligence was specifically made, and so certainly that the precise nature of the charge was clearly apparent, and this was sufficient to justify the court in refusing to make it still more particularly definite and certain. Burns 1908, § 385; Diamond Block Coal Co. v. Cuthbertson (1906) 166 Ind. 290, 296, 76 N. E. 1060;Illinois Ry. Co. v. Cheek (1899) 152 Ind. 663, 667, 53 N. E. 641;Grass v. Ft. Wayne, etc., Traction Co. (1908) 42 Ind. App. 395, 81 N. E. 514;Kelsay v. Chicago, etc., Ry. Co. (1908) 41 Ind. App. 128, 133, 81 N. E. 522.

[2] Appellant demurred to each paragraph of appellee's complaint and assigns the overrulingof these demurrers as error. But, in the points in its brief on these alleged errors, appellant's counsel content themselves with the general statement addressed to each paragraph that it “does not state facts sufficient to constitute a cause of action.” No defect in the complaint is pointed out, and, under the rules prevailing, no question of the sufficiency of either paragraph is presented. Wellington v. Reynolds (1912) 97 N. E. 155, and cases there cited; Illinois Surety Co. v. Frankfort Heating Co. (1912) 97 N. E. 158.

[3] The next error assigned is the overruling of appellant's motion for a new trial. Under this assignment of error, an attempt is made to question the correctness of the action of the trial court in overruling appellant's motion to require the jury to make more certain answers to a number of the interrogatories which had been submitted to it. But that part of appellant's brief devoted to propositions or points to show the error relied upon under the fifth clause of rule 22 (55 N. E. v) contains nothing but the bare assertion of the error. This is not sufficient to present any question. Wellington v. Reynolds, supra; Illinois Surety Co. v. Frankfort Heating Co., supra. This rule of practice must also be applied to the points in appellant's brief attempting to challenge the sufficiency of the evidence to sustain the verdict.

[4] Moreover, no question of the sufficiency of the evidence is presented by appellant for another reason. Appellant's brief does not contain a condensed recital of the evidence in narrative form, as required by the fifth clause of rule 22. The evidence is not set out by condensed recital in narrative form, but counsel for appellant have contented themselves with...