Cleveland, Cincinnati, Chicago and St. Louis Railway Company v. Sloan

• Decision Date: 14 December 1894
• Docket Number: 1,366
• Citation: 39 N.E. 174,11 Ind.App. 401
• Parties: CLEVELAND, CINCINNATI, CHICAGO AND ST. LOUIS RAILWAY COMPANY v. SLOAN
• Court: Indiana Appellate Court

39 N.E. 174

11 Ind.App. 401

CLEVELAND, CINCINNATI, CHICAGO AND ST. LOUIS RAILWAY COMPANY v. SLOAN

No. 1,366

Court of Appeals of Indiana

December 14, 1894

From the Benton Circuit Court.

Judgment reversed, with instructions to sustain the demurrer to the complaint, with leave to amend at cost of appellee.

E. P Hammond, C. B. Stuart, W. V. Stuart and J. T. Dye, for appellant.

D Fraser and W. H. Isham, for appellee.

OPINION

DAVIS, J.

This was an action by appellee to recover damages for the death of his minor son, occurring while in appellant's service as brakeman. A demurrer, on the ground that the complaint did not state facts sufficient to constitute a cause of action was overruled. On this ruling arises the first question presented for our consideration. The negligence alleged as the basis of the action is that "said defendant had carelessly and negligently permitted its right of way and its railway track to become in a dangerous condition in this, to wit: That the iron rails upon which the wheels of the cars rest or run were spiked to wooden ties, which wooden ties were loosely and carelessly laid on top of the ground with no dirt or gravel lying in between said ties; that said ties were irregularly laid, so that in some places the ties were wide apart and in others close together; that said ties were not laid parallel, but on the contrary were laid obliquely, so that at one end they would be some two or three inches apart. That said track had been recently on said day raised and left temporarily in said condition; that by reason of the negligence and carelessness aforesaid of this defendant the track at said point was in an unsafe and dangerous condition, which fact was wholly unknown to plaintiff's son, the said William O. Sloan, and to plaintiff, but was well known to the defendant."

In order to state a good cause of action in this case, it is necessary to show by proper averments that the alleged defective and dangerous condition of the track at the place where the decedent was injured was the result of an act of negligence on the part of the appellant in constructing, changing, repairing or altering the track; or if appellant was not originally responsible for creating the alleged defective and dangerous condition, that the track afterwards became defective and unsafe, and that appellant knew of such defective and dangerous condition a sufficient length of time prior to the accident to have repaired the same in the exercise of reasonable diligence, or that it was defective and dangerous for such a length of time prior to the accident that appellant, in the exercise of reasonable care, should have discovered and repaired it. Evansville, etc., R. R. Co. v. Duel, 134 Ind. 156, 33 N.E. 355; Town of Monticello v. Kennard, 7 Ind.App. 135, 34 N.E. 454; Board, etc., v. Stock, 11 Ind.App. 167, 36 N.E. 928; Lake Shore, etc., R. W. Co. v. Stupak, 123 Ind. 210, 23 N.E. 246.

It will be observed that there is no allegation in the complaint that the alleged defective and dangerous condition of the track was the result of any act of appellant. The only allegation indicating the manner in which this defective and dangerous condition was created is the charge that the track had been recently on said day raised and left temporarily in said condition. It is not alleged, however, that the defective and dangerous condition was the result of raising the track. Neither is it alleged that appellant raised the track. In the absence of such averments, the court can not infer that the appellant raised the track on the day the decedent received the injuries...