Cleveland, Cincinnati, Chicago & St. Louis Railway Company v. Snow
| Decision Date | 07 June 1905 |
| Docket Number | 5,153 |
| Court | Indiana Appellate Court |
| Parties | CLEVELAND, CINCINNATI, CHICAGO & ST. LOUIS RAILWAY COMPANY v. SNOW, ADMINISTRATOR |
Rehearing denied April 27, 1906.
From Grant Circuit Court; H. J. Paulus, Judge.
Action by Thomas H. Snow, as administrator of John Critz, deceased against the Cleveland, Cincinnati, Chicago & St. Louis Railway Company. From a judgment on a verdict for plaintiff for $ 6,000, defendant appeals.
Reversed.
C. E Cowgill, John T. Dye and A. B. Everhard, for appellant.
Chipman, Keltner & Hendee, Bagot & Bagot and R. M. Van Atta, for appellee.
Action by appellee, as administrator of the estate of John Critz, deceased, for damages for personal injuries resulting in the death of Critz. Trial by jury. Verdict and judgment for appellee.
Overruling (a) appellant's motion to make the complaint more specific, (b) the demurrer to the complaint, (c) the motion for judgment on the answers to interrogatories, and (d) the motion for a new trial, are assigned as errors.
The complaint avers that on January 5, 1901, and for many years prior thereto, Critz was in appellant's employ as engineer of a passenger-train; that a switch track led from the main track to a factory, and for several years there had been a switch target for throwing the switch to turn cars from the main track to the switch track; that appellant kept at the switch a target and padlock, which were so attached that when in good repair and securely locked the switch would remain in the position in which it was left by appellant, and thereby prevent the switch from being changed without the act of appellant and its servants and employes; that when the switch, target and padlock were in good condition and repair, and securely locked and fastened, it was safe for appellant to operate its trains over the switch and track at that point; that it was decedent's duty to run and operate a train at great speed over the main track without entering the switch, and that he had nothing to do with the maintenance, inspection or repair of the switch, or the appurtenances connected therewith, and that it was not any part of his duty to inspect or care for the same; that on the above date, and continuously to that date from September 1, 1900, the switch, target and padlock were insecure, insufficient and out of repair, so that the switch could not be and was not securely locked and fastened, but the "lock, target and switch were by the defendant negligently and carelessly allowed to be, become and remain out of repair, and to be and remain weak, insufficient and defective, all of which defendant well knew and could have known by ordinary care and diligence;" that the decedent, in the discharge of his duty, and in compliance with the requirements of the appellant, was running the engine at from forty to sixty miles an hour at the time of reaching the switch; that appellant had "carelessly and negligently installed, left and permitted said padlock, target, switch and the appliances connected therewith to be, become and remain out of repair, unlocked, unfastened, insecure and open at a time when the same should have been securely closed and locked to enable said train to pass over said main track, so that previously to and on the approach and attempt of said engineer John Critz, deceased, to pass his said engine and cars over and on the main track where it intersects said switch said engine was violently thrown from the track, and said decedent thereby killed;" that decedent had no notice or knowledge of such defective condition, or that the same was open, and could not have known the same by the use of ordinary care.
The motion to make the complaint more specific in certain particulars, we think, was properly overruled. It alleged that the "defendant" negligently left the switch open at a time when it should have been closed and locked. It also alleged that for a period stated the switch target and lock were insufficient and out of repair, so that the switch could not be, and was not, securely locked and fastened, but that the lock, switch and target were by appellant negligently allowed to be and remain out of repair, and to be and remain weak, insufficient and defective. It is argued that the pleading does not state sufficiently what the defects were, and wherein located, and the case of Tipton Light, etc., Co. v. Newcomer (1901), 156 Ind. 348, 58 N.E. 842, is cited. In that case it was alleged that the company had negligently permitted its high-pressure line "to become defective, insufficient and out of repair;" and it was held that the pleading failed to show how it had become defective, or how it was insufficient, or how out of repair. In the case at bar it is averred that when appellant kept the switch, target and lock in good repair, and securely locked, the switch would remain in the position in which left by appellant, and that when they were in good condition and repair, and securely locked and fastened, it made it safe for appellant to operate its trains over the switch and track at that point. The two acts of negligence alleged in the pleading are that appellant negligently left the switch open at a time when it should have been closed, and requiring decedent to run a train over the same without notice of such defect, and negligently using in connection with the switch a defective lock which rendered the use of the switch unsafe, and requiring decedent to use the same without notice of such defect.
The lock and switch are parts of one apparatus, and the defective lock rendered the switch dangerous. In alleging the defect, the pleading speaks of the switch, target and lock, and avers that when they were in good condition and repair, and locked and fastened, it was safe to operate trains over the switch and track at that point; that at the time in question this lock and switch were insecure, insufficient and out of repair, so that the switch could not be and was not securely locked and fastened, but that appellant negligently allowed the lock and switch to become and remain "out of repair, and to be and remain weak, insufficient and defective." The theory of the pleading seems to be that the injury resulting in decedent's death was caused by the defective lock, and we think the language used by the court in Ohio, etc., R. Co. v. Heaton (1894), 137 Ind. 1, 35 N.E. 687, is applicable here. In that case, in sustaining the overruling of a motion to make a complaint more specific as to alleged defects in a lock, the court said: "To say of the lock that it was old, worn out, out of repair, broken, and unsafe,' was certainly sufficient, and even more than sufficient, to apprise the appellant of the charge made as to its defective condition."
In support of the demurrer to the complaint counsel argue that if the open condition of the switch was one of the two acts of alleged negligence that caused the injury, then the complaint was defective in that it did not allege that appellant had knowledge or had opportunity for knowing of such condition. But the pleading alleges that the "defendant" had negligently left and permitted the lock, switch and appliances to become and remain open, at a time when the switch should have been closed and locked to enable the train to pass over the main track.
One of the grounds of the motion for a new trial is that the verdict of the jury is not sustained by sufficient evidence. Counsel for appellee insist in their brief that no question is presented as to the sufficiency of the evidence, because of the failure to comply with rule twenty-two of this court. That rule provides: "If the insufficiency of the evidence to sustain the verdict or finding, in fact or law is assigned, the statement...
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