Cleveland, Cincinnati, Chicago & St. Louis Railway Co. v. Morrey
| Decision Date | 23 June 1909 |
| Docket Number | 21,085 |
| Citation | 88 N.E. 932,172 Ind. 513 |
| Parties | Cleveland, Cincinnati, Chicago and St. Louis Railway Company v. Morrey, Administratrix |
| Court | Indiana Supreme Court |
From Superior Court of Madison County; Cassius M. Greenlee, Judge.
Action by Tempest Morrey, as administratrix of the estate of Harry Morrey, deceased, against the Cleveland, Cincinnati, Chicago and St. Louis Railway Company. From a judgment on a verdict for plaintiff for $ 7,000, defendant appeals.
Reversed.
Thomas L. Stitt, C. E. Cowgill, L. J. Hackney and Lovett & Slaymaker, for appellant.
Kittinger & Diven, for appellee.
Appellee as administratrix of the estate of Harry Morrey, deceased, instituted this action against appellant to recover damages for the death of decedent, by reason of the alleged wrongful act of appellant.
A motion has been made to dismiss the appeal (1) because of alleged insufficiency of the assignment of errors, (2) on the ground that the precipe is not copied into the record immediately before the clerk's certificate. By leave of court, the assignment of errors has been corrected by amendment. The precipe is copied into the record immediately following the index, and preceding the showing of the filing of the complaint, under a formal recital by the clerk of the fact, and the date of its filing, and is referred to in the clerk's certificate as the "above and foregoing precipe." The statute says it "shall be copied in the transcript immediately before the certificate;" but it has been held, and we think correctly, that the act of 1903 (Acts 1903, p. 338, § 7, § 667 Burns 1908) did not repeal § 690 Burns 1908, § 649 R. S. 1881, and that where, as here, the certificate of the clerk affirmatively shows that it contains a transcript of all the proceedings below, it is sufficient without a precipe. Rutherford v. Prudential Ins. Co. (1904), 32 Ind.App. 423, 70 N.E. 177.
It is evident that the intention was to follow § 667, supra, but that section with respect to the position the precipe shall occupy is directed to the clerk, and does not go to any substantive right of the parties, and when copied into the transcript, and referred to in the certificate, it clearly becomes a part of the record, and the purpose is subserved. It would be a very strained construction to hold that an appeal should be dismissed on so technical a basis.
Objection is also made that the certificate of the clerk is so defective as to require dismissal of the appeal. The language is "that the above and foregoing transcript contains full, true, correct and complete copies of all papers and entries in said cause filed in my office, as such clerk, and recorded in the records of this office, as required by the above precipe." The precipe calls for a transcript of all papers and entries in the cause. The use of the language, "filed in my office, as such clerk, and recorded in the records of this office," is surplusage. The certificate is complete without it; but it is insisted that it so qualifies the former language as to exclude all papers and entries not filed in his office, and therefore excludes all papers except the complaint, because technically they are filed in court, and not in his office. In some sense they are not filed in his office, but in the broader sense the words "filed in my office" include filing in open court. Entries made are parts of the records of his office, and the files are as well. Filing is depositing with him, for official custody, and by statute he is made the custodian. The motion to dismiss the appeal must be denied.
The complaint is in one paragraph, and the material allegations are, that appellee's decedent, while in the line of his duties as head brakeman on one of appellant's freight-trains, was run over and killed at about 12:30 o'clock a. m. at Greensburg, Indiana, where decedent's train stopped for the purpose of detaching the engine to procure water, and to enable the trainmen to obtain lunch at a restaurant in appellant's depot; that the engine was detached, and run between three hundred and four hundred feet to a water-tank, and that decedent's duty was to couple the engine to the train when it was backed up; that the engine was backed from the water station to, or near to, the train from which it had been detached; that, having no knowledge that the engine was being backed in the darkness, decedent was run over and killed by it before it was backed up to its train to be attached; that decedent was upon the track, and going back to the train in the line of his duties, for the purpose of attaching the engine to its train of cars, when he was run over and killed.
The negligence charged was in failing and neglecting to have any lights in the switch yards, or any headlight or other light on the engine, where it could be seen by the decedent or any other person standing in the rear of the locomotive as it was backed; that there was no light of any kind or character on the rear of the locomotive, and no danger-signal given to notify and warn the decedent of the approach of the backing locomotive; that it was very dark, and the locomotive was backed noiselessly; that the locality was an extensive freight and switch yard, where there were many tracks, trains, locomotives and cars in close proximity to the particular locomotive; that there were no lights in the switch yard to warn the decedent of the approach of the locomotive, or indicate its backing up, and that these omissions caused his death.
A demurrer to this complaint for want of facts was overruled, and exception reserved, and an answer filed in general denial. There was a trial and verdict, and, over motions for judgment on the answers to the interrogatories, and for a new trial, judgment was rendered for appellee.
Errors are assigned as to the overruling of the demurrer to the complaint, and in overruling the motion for a new trial.
It does not appear from the complaint whether the decedent had uncoupled the engine. It is alleged that he was in the line of his duties for the purpose of coupling the engine to the train. It is not alleged that the decedent did not know that there was no light or danger-signal on the rear of the engine, nor that he did not know that the yards were not lighted; nor are there any facts showing that any duty was owing to him as to their being lighted, or that they were different from what they had always been. It is alleged that it was very dark, and that there was no light or danger-signal on the rear end of said engine to warn him in regard to its backing; but no facts are alleged showing any duty owing to him in respect to having such danger-signal on said engine, or that it was neglected, unless it can be inferred from the general allegations that appellant carelessly and negligently failed to have such lights or danger-signals. It is not alleged that he had no knowledge of the backing up of the engine, unless it can be said to arise from the recitative clause, "That decedent, not having any knowledge that the train was backing in the darkness of the night, was run over by the defendant's engine." This latter clause is not sufficient to charge want of knowledge on decedent's part that the engine was backing. Greenfield Gas Co. v. Trees (1905), 165 Ind. 209, 75 N.E. 2; Malott v. Sample (1905), 164 Ind. 645, 74 N.E. 245, and cases cited; Indianapolis, etc., Transit Co. v. Foreman (1904), 162 Ind. 85, 102 Am. St. 185, 69 N.E. 669; Erwin v. Central Union Tel. Co. (1897), 148 Ind. 365, 46 N.E. 667; Avery v. Dougherty (1885), 102 Ind. 443, 52 Am. Rep. 680, 2 N.E. 123; Hay v. Bash (1906), 37 Ind.App. 167, 76 N.E. 644.
The allegation of the want of knowledge on the part of an injured servant must be as broad as the allegation of knowledge on the part of the master, and he must disclose an absence of knowledge of the defects or omissions of which he complains. Chicago, etc., R. Co. v. Glover (1900) 154 Ind. 584, 57 N.E. 244; Pennsylvania Co. v. Ebaugh (1899), 152 Ind. 531, 53 N.E. 763; Louisville, etc., R. Co. v. Kemper (1897), 147 Ind. 561, 47 N.E. 214; Peerless Stone Co. v. Wray (1896), 143 Ind. 574, 42 N.E. 927; M. Rumely Co. v. Myer (1907), 40 Ind.App. 460, 82 N.E. 97; Baltimore, etc., R. Co. v. Hunsucker (1904), 33 Ind.App. 27, 70 N.E. 556.
It is a well-settled rule that where the specific facts alleged show a knowledge of danger, or the same opportunities for knowledge as the master has, these allegations will overcome the general allegation of want of knowledge. Louisville, etc., R. Co. v. Kemper, supra; Peerless Stone Co. v. Wray, supra; Ames v. Lake Shore, etc., R. Co. (1893), 135 Ind. 363, 35 N.E. 117; Myers v. W. C. DePauw Co. (1884), 138 Ind. 590, 38 N.E. 37; M. Rumely Co. v. Myer, supra; Baltimore, etc., R. Co. v. Hunsucker, supra; Corning Steel Co. v. Pohlplatz (1902), 29 Ind.App. 250, 64 N.E. 476.
What is the negligence which is invoked to authorize a recovery? What, under the allegations of the complaint, was the proximate cause of the injury? We understand from the complaint that the negligence charged is in failing to have the yards lighted, and in backing the engine without lights or danger-signals. As we have said, there are no allegations showing a duty as to lighting the yards, or as to having lights or signals on the engine, or as to the giving of signals, unless it can be inferred from the allegation that appellant carelessly and negligently failed to provide them. We cannot know from this allegation that it was practicable or that it was appellant's duty to provide them. And if the allegation of carelessness and negligence in failing to provide them could be said to amount to an averment that it was such duty, the averment is insufficient, because it is a conclusion of law, averring simply...
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Cleveland, C., C. & St. L. Ry. Co. v. Morrey
... ... of Harry Morrey, deceased, against the Cleveland, Cincinnati, Chicago & St. Louis Railway Company. From a judgment for plaintiff, ... ...