Evansville & T.H.R. Co. v. Crist

• Decision Date: 03 January 1889
• Citation: 116 Ind. 446,19 N.E. 310
• Parties: Evansville & T. H. R. Co. v. Crist.
• Court: Indiana Supreme Court

116 Ind. 446

19 N.E. 310

Evansville & T. H. R. Co.

v.Crist.

Supreme Court of Indiana.

January 3, 1889.

Appeal from circuit court, Greene county; George W. Buff, Judge.

Action by Sarah L. Crist against the Evansville & Terre Haute Railroad Company to recover damages for personal injuries. Defendant filed separate demurrers to each paragraph of the complaint, the overruling of which is assigned as error. The injury received was stated in each paragraph of the complaint as follows: “Whereby she was greatly injured in this: the tibia or shin bone in her left leg was fractured and broken near about one and one-half inches above the ankle joint, the bones of the ankle and heel were wrenched out of place and dislocated, and the tendons lacerated and torn loose, so that such injuries will leave her a cripple for life; that three of her ribs were broken, and her spine was greatly injured in such a manner as to be incurable; by reason of which injuries plaintiff became, and is now, and will be permanently, lame, crippled, and sick, and has been ever since entirely disabled from attending to her business, and will be so disabled in future.”

Defendant moved to strike out of the deposition of Robert H. Crowder the following question and answer, “for the reason that the same is immaterial and irrelevant, and because plaintiff has not sued for an injury occasioned by fracturing the fibula:” Question. “State what in your judgment from the examination made, and your knowledge as a physician and surgeon, was the immediate cause of the injury.” Answer. “I think the fibula had been fractured about two inches above the ankle joint, and the internal malleolus had been fractured from the tibia.” Similar motions were made as to other questions and answers similar to the above. Defendant also moved to strike out the following portion of an answer contained in the same deposition: “With the resulting inflammation of the pleura had obstructed the motion of the chest, so that the lower part of the left lung was not normally expanded in respiration;” and also a question and answer relating to a continued pain at the base of the brain, tenderness on pressure on the spine opposite the eighth rib, dilation of the pupils of the eyes at times, impairment of vision at times, loss of memory, and slowness of speech. These motions were denied. The jury returned a verdict for plaintiff, and defendant appeals.

John E. Iglehart and Edwin Taylor, for appellant. William C. Hultz, Orion B. Harris, and John S. Bays, for appellee.

Elliott, J.

The complaint of the appellee is in three paragraphs. Each avers that the injury for which a recovery is sought was caused by the negligence of the defendant, and that plaintiff was injured without any fault or negligence on her part. They each contain these allegations: “That the appellee lived with her father, who owned land not far from the appellant's railroad; that the only means of egress and ingress was a public highway; that the defendant constructed and built the last-described line of railroad across, upon, and along last-described highway for a distance of three-quarters of a mile west from the eastern terminus of said last-described highway, and unlawfully, carelessly, and negligently failed to construct its line of railroad so as not to interfere with the free use of said highway, and so as to afford security for life and property, in this: that the defendant dug an excavation some six feet deep and fifteen feet wide in the highway for a distance of 150 yards, and piled the dirt from said excavation along the sides thereof, making embankments some nine feet high for the distance of 150 yards, leaving no way for persons to pass along the highway except upon the embankment, with the railroad track between; and that the defendant unlawfully, carelessly, and negligently failed and still fails in every particular to restore the highway thus intersected to its former state, or in a sufficient manner not to unnecessarily impair its usefulness or injure its franchises.”

The second and third paragraphs each contains these allegations upon the subject of the defendant's negligence: “That on the 8th day of October, 1886, this plaintiff was lawfully riding her horse upon the highway so impaired, eastward to her home; that while she was so riding along it, between her home and the western highway running north and south, the defendant's agents approached along said railroad from the east in a hand car, and frightened plaintiff's horse, and, knowing the situation of plaintiff, but disregarding their duty, they negligently managed the hand car, in this: that after seeing the dangerous situation in which plaintiff was placed, they failed to stop said hand car, and thereby prevent plaintiff's horse from becoming frightened, and thus prevent plaintiff from being injured; that on account of such negligence, and the negligence of defendant in failing to restore the highway to its former state, or in a sufficient manner not to unnecessarily impair its usefulness or injure its franchises, this plaintiff, without any fault or negligence on her part, was greatly injured.”

The first paragraph does not contain the allegations last quoted, but does contain, in addition to those already mentioned, the following averments: That on account of the defendant's negligence in failing to restore the highway, the plaintiff, “while riding her horse eastward to her home upon the highway so impaired, on the 8th day of October, 1886, without any fault or negligence on her part, was thrown from her horse” and injured.

The question whether the complaint shows that there was not contributory negligence on the part of the appellee cannot be decided without first ascertaining and determining what duty the appellant owed the public respecting the highway which it had changed from its former condition; for it is important to give due prominence to two essential facts. One is that the plaintiff was in lawful use of a public highway; and the other is that, for its own benefit, the appellant had changed the highway, and negligently failed to restore it to its former condition, thus making its use unsafe and dangerous. Nor can this question be disposed of without giving just effect to the general averment that there was no fault or negligence on the part of the plaintiff. This averment makes the complaint good upon the question of contributory negligence, unless the facts specifically pleaded clearly show that the plaintiff was negligent. We concur with appellant's counsel that, ordinarily, the specific facts will control the general averment if they make it clear that there was contributory negligence. Reynolds v. Copeland, 71 Ind. 422.

It has, however, long been the rule in this court that unless the facts specifically stated clearly show that there was contributory negligence, the general averment will rescue the complaint from its assailant. In the case of Town v. Goller, 76 Ind. 291, it was said: “The allegation that he was without fault, like the general averment of negligence, has a technical significance, and admits proof of any facts tending to show its truth.” The cases are collected in Railway Co. v. Walker, 113 Ind. 196, 15 N. E. Rep. 234, and it was said: “The rule that the general averment is sufficient has been so long established, and so often approved, that we should feel bound to adhere to it even if we doubted its soundness; but we think its soundness can be vindicated on principle. It is in the nature of a negative fact, and an averment of such a fact cannot be made with the same particularity as an affirmative one. The elementary books, recognizing this, agree that in such case a general averment is ordinarily sufficient. It is evident that any other rule would be practically incapable of enforcement, for a negative fact can seldom be alleged except generally and by way of denial, since any other course would require a process of exclusion and elimination that would lead to an almost endless pleading. If the specific facts absolving the plaintiff from fault must be pleaded, then it would be necessary to enumerate every fact that might be considered as tending to charge him with fault, and negative its existence. In some cases this process of enumeration and exclusion would be practically impossible. In others it would lead to a prolixity of pleading that would do no good, but would produce uncertainty and confusion.”

The question now in hand, therefore, comes to us, not as one of evidence, but as one of pleading, and therefore as one to be determined under the rule stated. For this reason the cases cited by the appellant which bear upon questions arising on the evidence and on the instructions are not relevant. Testing the complaint by the settled rule, it must be held to show that the plaintiff was not guilty of contributory negligence, since the specific facts do not clearly negative the general averment. They do not, in truth, negative it in any respect, but, on the contrary, are consistent with it.

The two important facts to which we have referred,-the place where the injury was received, and the duty of the appellant respecting the highway it had made unsafe,-when assigned their due weight, fully and clearly relieve the plaintiff from any imputation of negligence, especially in this, when considered, as they must be, in connection with the explicit averment of her complaint that she was without fault or negligence. She was upon a public highway leading from her home, and there she had a right to be. She was, it is true, bound to exercise ordinary care in using the highway, but she was not bound to do more. She was not crossing a railroad track, where the rights and duties of the company and a traveler are reciprocal; but she was upon a public way, which the company had no right to use in operating its road, or to make unsafe.

The action is not, it is to be remembered, to recover for injuries received on...