Cleveland, Cincinnati, Chicago & St. Louis Railway Company v. Starks
| Decision Date | 10 June 1910 |
| Docket Number | 21,686 |
| Citation | 92 N.E. 54,174 Ind. 345 |
| Parties | Cleveland, Cincinnati, Chicago and St. Louis Railway Company v. Starks, Administratix |
| Court | Indiana Supreme Court |
From Ripley Circuit Court; Francis M. Thompson, Judge.
Action by Mary A. Starks, as administratrix of the estate of Francis M. Starks, deceased, against the Cleveland, Cincinnati Chicago and St. Louis Railway Company. From a judgment on a verdict for plaintiff for $ 2,500, defendant appeals. (Transferred from Appellate Court under § 1394 Burns 1908, Acts 1901 p. 565, § 10.)
Reversed.
Cravens & Cravens, for appellant.
Connelley & Kline, for appellee.
Appellee recovered judgment for the killing of Francis M. Starks at a grade crossing over appellant's railroad tracks. Errors have been assigned upon the overruling of appellant's demurrer to each paragraph of the complaint and its motion for a new trial.
The complaint was in five paragraphs, but the first was withdrawn.
The second paragraph of complaint alleges that the death of the decedent was negligently caused by appellant's failure to give the statutory signals or other warning of the train's approach to the crossing, and that he left surviving his widow, Mary A. Starks (appellee), and certain named minor children, who were dependent on him for support. No express allegation of resulting damages in any sum was made.
It is urged that this paragraph is defective and insufficient for want of an allegation that damages were sustained. In the case of Korrady v. Lake Shore, etc., R. Co. (1892), 131 Ind. 261, 29 N.E. 1069, it is expressly held that a complaint for death by wrongful act which shows the survival of a widow and infant children of the decedent is sufficient, "although it is not directly alleged that the surviving kinsfolk sustained actual damages." The court further says: "The legal presumption is that infant children are entitled to the benefit of the father's services, and that the wife is entitled to the benefit of the services and assistance of her husband, and that such services are of value to her and her children." Chicago, etc., R. Co. v Thomas (1900), 155 Ind. 634, 58 N.E. 1040; Clore v. McIntire (1889), 120 Ind. 262, 264, 22 N.E. 128; Louisville, etc., R. Co. v. Buck (1889), 116 Ind. 566, 2 L.R.A. 520, 9 Am. St. 883, 19 N.E. 453. See, also, Atchison, etc., R. Co. v. Weber (1885), 33 Kan. 543, 6 P. 877, 52 Am. Rep. 543; Houghkirk v. President, etc. (1883), 92 N.Y. 219, 44 Am. Rep. 370; Haug v. Great Northern R. Co. (1898), 8 N.D. 23, 77 N.W. 97, 42 L.R.A. 664, 672, 73 Am. St. 727; 13 Cyc. 344.
The third paragraph is attacked for the alleged reasons that it appears from this paragraph that decedent could have seen the approaching train and could not have heard the signals if given. This paragraph alleges facts showing obstructions to seeing and hearing the approach of a west-bound train when traveling southward on the highway, that the crossing was dangerous, that the train which struck decedent's vehicle was run at a very high rate of speed, and that no signal or warning of its approach was given. The fact that appellee, by the exercise of ordinary care for his safety, could have discovered the approach of the train before the accident, does not affirmatively appear, and hence the inference of contributory negligence does not necessarily arise, and this paragraph of complaint is sufficient.
It is claimed that the fourth paragraph of complaint is bad because it does not sufficiently show that the decedent was using the highway as a traveler, and as such drove upon the crossing at the time of the collision. It is alleged that decedent was traveling in a vehicle southward along a public highway, and was struck when he reached the main track of appellant's road. The facts alleged are sufficient to show that the use of the crossing by decedent was that of an ordinary traveler over the highway, for whose safety, in such use, appellant was bound to exercise ordinary care. The facts alleged readily distinguish this from the case of the Chicago, etc., R. Co. v. McCandish (1907), 167 Ind. 648, 79 N.E. 903, and the paragraph is not open to the objection urged by appellant's counsel.
The fifth paragraph of complaint purports to allege that decedent's death was intentionally caused by appellant's engineer. No objection to the sufficiency of this paragraph has been pointed out in appellant's brief, and the alleged error in overruling its demurrer thereto must be regarded as waived.
The court, over appellant's objection, permitted appellee to prove that decedent treated his minor children with kindness. Testimony as to the general character of decedent for industry, and his relation and attitude toward his children, with respect to kindly attention, care and provision for support, is competent in actions of this character. No error was committed in receiving the evidence on this subject to which objections were made. Board, etc., v. Legg (1884), 93 Ind. 523, 47 Am. Rep. 390; Anthony Ittner Brick Co. v. Ashby (1902), 198 Ill. 562, 64 N.E. 1109; Union Pac. R. Co. v. Sternberger (1898), 8 Kan.App. 131, 54 P. 1101; Tilley v. Hudson River R. Co. (1864), 29 N.Y. 252, 86 Am. Dec. 297; Chilton v. Union Pac. R. Co. (1892), 8 Utah 47, 29 P. 963.
The court gave the jury the following definition of a wilful injury or death: "To constitute wilful injury or death, the act which produced such injury or death must have been intentional, or must have been done under such circumstances as evinced a reckless disregard for the safety of others and a willingness to inflict or bring about the injury or death complained of."
This definition is incomplete, inaccurate and misleading, so far as it relates to this case. The charge of wilfulness, as made in the fifth paragraph of the complaint, is built up by the allegation of circumstantial...
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