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

• Decision Date: 24 November 1911
• Docket Number: No. 7,332.,7,332.
• Citation: 96 N.E. 493,49 Ind.App. 647
• Court: Indiana Appellate Court
• Parties: CLEVELAND, C., C. & ST. L. RY. CO. v. STEVENS.

49 Ind.App. 647

96 N.E. 493

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

v.STEVENS.

No. 7,332.¹

Appellate Court of Indiana, Division No. 1.

Nov. 24, 1911.

Appeal from Circuit Court, Ohio County; George E. Downey, Judge.

Action by Ulysses Grant Stevens against the Cleveland, Cincinnati, Chicago & St. Louis Railway Company. Judgment for plaintiff, and defendant appeals. Reversed, with directions.Thos. S. Cravens, L. J. Hackney, and F. L. Littleton, for appellant. Givan & Givan and McMullen & McMullens, for appellee.

FELT, P. J.

This is an action for damages for injuries to real estate belonging to appellee, alleged to have been caused by appellant's obstruction and diversion of a natural water course running through the lands adjoining those of appellee by depositing in the stream earth and other material, and by the construction of a culvert across the stream. Trial by jury and verdict for $2,536 upon which judgment was rendered for appellee, and from which this appeal was prayed and granted.

Appellant has assigned as error the overruling of its demurrer to each paragraph of the complaint and its motion for a new trial.

[1] Both paragraphs of complaint are alike in the alleged defect, which is that each fails to aver or show that the damage complained of was not caused or contributed to by the fault or negligence of appellee. This suit is for damages to property, and both parties agree that the statute making such averment unnecessary in personal injury suits does not apply. Appellee admits that there is no general or specific averment in the complaint which negatives his fault, but contends that the complaint shows that he could not have been guilty of negligence causing or contributing to the alleged injury. In the case of Cincinnati, etc., Electric St. Ry. Co. v. Klump, 37 Ind. App. 660, 77 N. E. 869, cited by appellee, the complaint was for an injury to personal property, and alleged that the wagon was being driven “with due care and prudence,” and the court held the averment sufficient to show the plaintiff's freedom from negligence. It has also been held sufficient to allege that the damage was caused “wholly and exclusively” by the negligence of the defendant, or averments of similar import.

[2][3] The general rule must be recognized that facts are to be positively averred, and that mere recitals or conclusions are insufficient to state material facts, that it will be presumed a pleading is as favorable to the party pleading as the facts will warrant, and that inferences will not be indulged to supply essential facts. This general rule is, however, subject to the qualification that the facts positively and directly averred carry with them into the pleading such other facts as are necessarily inferred from the facts well pleaded, where but one inference can be drawn therefrom, but, if the construction is doubtful, the doubt must be resolved against the pleader. Douthit et al. v. Mohr, 116 Ind. 482, 18 N. E. 449;Conkey Co. v. Larsen, 173 Ind. 585-590, 91 N. E. 163, 29 L. R. A. (N. S.) 116;Holcomb v. Norman, 47 Ind. App. 87-90, 91 N. E. 625;Pittsburgh, etc., R. Co. v. Rogers, 45 Ind. App. 230-239, 87 N. E. 28;Holliday, etc., Co. v. O'Donnell, 44 Ind. App. 647-654, 90 N. E. 24; C., C., C. & St. L. Ry. Co. v. Heineman, 46 Ind. App. 388, 90 N. E. 899.

[4] Negligence on the part of plaintiff may be negatived either by a general averment or by setting forth specific facts to show due care, but, to be sufficient, the complaint must in some way show plaintiff's freedom from negligence. New York, etc., R. Co. v. Mushrush, 11 Ind. App. 192, 37 N. E. 954, 38 N. E. 871;Indiana, etc., Co. v. Lippincott Glass Co., 165 Ind. 361, 75 N. E. 649;Cincinnati, etc., R. Co. v. Klump, 37 Ind. App. 660-663, 77 N. E. 869;Cincinnati, etc., R. Co. v. Hiltzhauer, 99 Ind. 486-490;Potter v. Ft. Wayne, etc., Traction Co., 43 Ind. App. 427, 87 N. E. 694. The case of Cleveland, etc., Co. v. Wisehart, 161 Ind. 208, 67 N. E. 993, is so similar to the one at bar in respect to the nature of the action and the facts averred as to be decisive of the question presented by the ruling upon the demurrer to the complaint in this case, unless there is later authority warranting us in holding that it is not necessary to show plaintiff's freedom from contributory negligence. See, also, City of Ft. Wayne v. Coombs, 107 Ind. 75, 7 N. E. 743, 57 Am. Rep. 82;City of Anderson v. Hervey, 67 Ind. 420.

Applying the most liberal rule of construction permissible under our statutes and decisions, we are unable to find the negligence of the appellee is negatived either by a general averment or by the specific facts alleged. In the Wisehart Case, supra, 161 Ind. on pages 213 and 216, 67 N. E. on pages 995, 996, it is said: “If appellee, as her counsel apparently argue, is seeking redress for damages sustained by reason of appellant's neglect properly to restore the water course, which, as alleged, it had obstructed in the construction of its road, such theory is not clearly disclosed by the averments of the paragraph in question. The statute hereinbefore set out expressly authorized the railroad company to construct its road upon or across the stream or water course in controversy, subject to the conditions therein provided, and for merely doing what the law authorized certainly affords appellee no cause of action. Appellant undoubtedly had the right to construct the trestle bridge and the embankment, as shown, on its own premises or right of way. These were necessary, as we may assume, to the successful operation of its road. Therefore, to render tortious the act of appellant in allowing or causing the dirt used in the construction of the said embankment to spread or fill up the ditch or waterway, as alleged, there should have been some averments or allegations to show that the act of filling up the ditch on its own lands, and thereby obstructing the flow of the water, was either willfully or negligently done to the injury of appellee. *** It is true that the rule in...