Cleveland, Columbus, Cincinnati and Indianapolis Railway Co. v. Wynant

• Decision Date: 29 January 1885
• Docket Number: 10,778
• Citation: 100 Ind. 160
• Parties: Cleveland, Columbus, Cincinnati and Indianapolis Railway Company v. Wynant
• Court: Indiana Supreme Court

100 Ind. 160

Cleveland, Columbus, Cincinnati and Indianapolis Railway Company v. Wynant

No. 10,778

Supreme Court of Indiana

January 29, 1885

Petition for a Rehearing Overruled March 17, 1885.

From the Madison Circuit Court.

The judgment is reversed, with costs, and the cause is remanded with instructions to sustain the motion for a new trial, and for further proceedings.

H. H Poppleton, M. S. Robinson, J. W. Lovett, A. C. Harris and W H. Calkins, for appellant.

H. D. Thompson and T. B. Orr, for appellee.

OPINION

Howk, J.

The first error of which the appellant complains here is the overruling of its demurrer to each paragraph of appellee's complaint. The complaint contained two paragraphs. In the first paragraph, the appellee alleged that the appellant was the owner of, and for ten years last past had been operating, a railroad from the city of Cleveland, in the State of Ohio, to the city of Indianapolis, in this State, through the county of Madison, and that its railroad passed over and across the highway leading from the city of Anderson to the town of Pendleton, both in Madison county; that, in 1867, the appellant constructed a branch railroad, leading from the main line of its road to a gravel bank in said county, of the length of about one mile, and had owned and operated such branch railroad continuously since its construction, which branch crossed the aforesaid highway in Madison county, that, on March 22d, 1882, the appellant placed about forty box and flat cars on the track of its branch railroad, at and near its crossing of the above described highway, one of which box cars the appellant then placed upon and partially across such highway, which box car as so placed by appellant extended twenty-four feet upon the highway, and to the edge of the part of the highway then used by the public as their route of travel, and then and there unlawfully permitted such car to obstruct the highway and the travel thereon; that, on the day last named, the appellee was going from her home in said county to the city of Anderson, in a two-horse spring-wagon drawn by two quiet and gentle horses; that when she came with said team of horses to the crossing of the highway by such branch railroad, the appellant by carelessly, negligently and unlawfully permitting said box car, in its then condition, to remain upon such highway as aforesaid, caused the said team of horses and each of them to become frightened and unmanageable, and to run away, and in their fright to overturn the wagon in which appellee was riding, and threw her out of the wagon, thereby breaking her arm and greatly injuring her body, causing her great bodily and mental pain and suffering, etc., all of which was done and caused by the appellant, without appellee's fault or negligence, to her damage in the sum of $ 5,000, for which she demands judgment, etc.

In the second paragraph of her complaint, the appellee alleged that, on March 22d, 1882, the appellant being the owner of a railroad and the cars and locomotives proper for operating the same, and then engaged in operating the same, the appellee then going along one of the public highways of Madison county, in a two-horse spring-wagon drawn by two quiet and safe horses; that by reason of the negligence and carelessness of the appellant, unlawfully permitting an empty box car to remain on the track of its railroad, and to unlawfully remain in and upon such highway where appellee was compelled to travel, and by reason of such box car being so in the highway as above stated and "in its then condition," the said horses became frightened and ran away, overturning the wagon and throwing appellee upon the ground and against a fence, by reason of which her arm was broken, and she was otherwise greatly injured and caused to suffer great bodily and mental pain, and to entirely lose the use of her arm; all of which was caused by the carelessness and negligence of appellant, without any fault or negligence of the appellee, by reason of which she sustained damages in the sum of $ 5,000, for which sum she demanded judgment, etc.

Appellant's counsel earnestly insist, in argument, that the facts stated in each of these paragraphs of complaint are insufficient to constitute a cause of action. It must be confessed that the facts of the case are not very fully or accurately stated in either paragraph, and, especially, in the second paragraph of the complaint. But it must be borne in mind, in considering this question, that all the facts well pleaded, whether fully or accurately stated or not, by force and for the purposes of the demurrer, are admitted to be true precisely as the same are pleaded. Thus considering the objections urged by appellant's counsel to appellee's complaint, in the case in hand, we have no difficulty in reaching the conclusion that none of them are well taken, as to either paragraph of the complaint, by the demurrers thereto for the want of sufficient facts. The argument of counsel is chiefly devoted to the consideration of the alleged insufficiency of the facts stated in the second paragraph of complaint to constitute a cause of action. Counsel say of this paragraph that its allegations negative the idea that the box car was placed in and upon the highway by the appellant. We find no such negation in the paragraph. It simply fails to allege how or by whom the car was placed there, and it can hardly be said that this silence of the paragraph upon the subject either affirms or negatives the idea that the car was placed there by the appellant. This paragraph substantially charges that the appellant unlawfully permitted an empty box car, on the track of its railroad, to unlawfully remain in and upon the highway where appellee was compelled to travel, etc. That is, without any statement as to how or by whom the car was placed...