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

• Decision Date: 25 June 1914
• Docket Number: No. 8392.,8392.
• Citation: 105 N.E. 788,56 Ind.App. 530
• Court: Indiana Appellate Court
• Parties: EVANSVILLE & T. H. R. CO. v. HOFFMAN.

56 Ind.App. 530

105 N.E. 788

EVANSVILLE & T. H. R. CO.

v.HOFFMAN.

No. 8392.

Appellate Court of Indiana, Division No. 1.

June 25, 1914.

Appeal from Circuit Court, Daviess County; James W. Ogden, Judge.

Action by George Hoffman against the Evansville & Terre Haute Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed, with instructions.Edward H. Seneff, of Chicago, Ill., John E. Iglehart, Edwin Taylor, and Eugene H. Iglehart, all of Evansville, and Gardiner, Tharp & Gardiner, of Washington, Ind., for appellant. Padgett & Padgett, of Washington, Ind., and B. M. Willoughby and James M. House, both of Vincennes, for appellee.

FELT, C. J.

This is a suit for damages for personal injuries alleged to have been received by appellee while a passenger on a street car belonging to the Vincennes Traction Company, when said car was struck at a crossing by a cut of freight cars operated by appellant on its road.

The complaint is in one paragraph. It avers facts which show that appellant owns and operates a railroad which runs through the city of Vincennes and across North Second street in said city, on which the Vincennes Traction Company operates an electric railway; that appellant has a switch track which runs across said traction line on said North Second street at a point between Lyndale and Swartzel avenues; that on August 7, 1909, appellee was a passenger on one of the cars of said traction company operated over and upon said North Second street; that said traction car reached said crossing ahead of appellant's train and was about to cross appellant's said switch track when “the said defendant railroad company did, before said street car had passed over said crossing, carelessly and negligently, and without due care and precaution, run a locomotive and train of cars over, upon, and along its said track at said point where said track crosses the line of said traction company in such manner as to run against, upon, and over the car of said traction company, in which this plaintiff was riding as a passenger, with great force and violence, and did hurl said traction car from the track of said traction company and turn the same over and upset and crush the same; that the said defendant railroad company, when approaching the point where the track of said defendant company crossed the track of said Vincennes Traction Company on said North Second street, as aforesaid, with its locomotive and train of cars failed and neglected to stop said locomotive and train of cars before going upon, over, and across the track of the traction company, as is required by law, and wholly failed and neglected to exercise ordinary care and precaution before going upon the track of said Vincennes Traction Company; that at said time said locomotive and train of cars of said defendant company was being run backward (that is, the locomotive was pushing the cars in front of it without having a watchman or other person on the rear end to prevent accident, as required by the ordinances of the city of Vincennes, Ind.); that thereby, and on account of the negligent and careless manner in which said railroad company did run and operate, etc., *** this plaintiff was hurled and pitched from said traction car and under the same and was thereby wounded and bruised of body and injured in such a manner as to permanently impair his body and more particularly his nervous system; *** that, because of all the wrongful acts of the defendant hereinbefore complained of, this plaintiff has been permanently injured and made a nervous wreck and incapacitated from performing the work and duties of his occupation,” which incapacity and the elements of damages sustained are pleaded in detail.

[1][2] Appellant's demurrer for want of facts was overruled, and it filed an answer in general denial. A change of venue was taken to the Daviess court, where a trial by jury resulted in a verdict for appellee. Over appellant's motion for a new trial and a motion in arrest of judgment, the court rendered judgment on the verdict. These rulings are assigned as error and relied on for reversal.

Appellant insists that the complaint is insufficient in this that the general averment that “defendant did *** carelessly and negligently and without due care and precaution run its locomotive and train *** over and upon such crossing *** in such manner as to run against the street car,” etc., is followed by allegations of specific acts of negligence which control the pleading and show that no cause of action is stated.

It is true, as a general proposition, that specific allegations of facts in pleadings control general averments. This is true where the specific facts averred contradict or are inconsistent with the general averments. But, where the specific facts averred do not contradict the general averment and are not inconsistent therewith, the rule does not apply. Cleveland, etc., R. Co. v. Clark, 51 Ind. App. 392-404, 97 N. E. 822;Cole v. Searfoss, 49 Ind. App. 334-341, 97 N. E. 345;Indianapolis Union R. Co. v. Waddington, 169 Ind. 448-460, 82 N. E. 1030; C., C., C. & St. L. R. Co. v. Cyr, 43 Ind. App. 19, 21, 23, 86 N. E. 868;Moyer v. Ft. Wayne, etc., Co., 132 Ind. 88-90, 31 N. E. 567;Chicago & Erie R. R. Co. v. Dinius, 170 Ind. 222-229, 84 N. E. 9;Southern R. Co. v. Elliott, 170 Ind. 273-281, 82 N. E. 1051.

The complaint in this case could have been so drawn as to more clearly indicate its theory, but, when judged by the general scope and tenor of its averments, it is apparent that it is not open to the objection urged against it, and that it comes within the rule which permits several independent acts of negligence to be charged in the same paragraph, and, if any one of such acts of negligence is shown to be the proximate cause of the injury complained of, the pleading is sufficient as against a demurrer on the ground of the insufficiency of the facts alleged to state a cause of action. The specific acts of negligence alleged are not contradictory of, nor inconsistent with, the general charge of negligence. Cleveland, etc., R. Co. v. Clark, supra. The complaint is sufficient to withstand the demurrer.

The motion for a new trial challenges the correctness of certain instructions given the jury by the court on its own motion and others given at the request of appellee.

[3] No. 3, given at the request of appellee, is as follows:

“If the jury find from the evidence in this cause, by a fair preponderance thereof, that at the time of the injury complained of some persons or person in the management and running of defendant's train of cars were on top of one of said cars and saw the street car, on which plaintiff was riding, standing upon or about to go upon the track of defendant's company, where such street car was in imminent danger of being run down and injured and the passengers on said street car injured or killed by collision with such street car, it was the duty of such person or persons, so in the employ of the defendant, to give the proper signal to the engineer in charge of such train at once to stop said train and prevent said collision, if possible, and if such person or persons did not give such proper signals to the engineer of such train at once to stop such train, but instead thereof called out to the motorman or conductor on the street car, such conduct on the part of such agents or servants of the defendant would be negligence on the part of the defendant.”

It is claimed by appellant that this instruction declares, as a matter of law, that it was the dtuy of its servants in charge of said train to do a particular thing, and if they failed so to do, and did another thing, appellant was guilty of negligence; that it departs from the theory of the complaint and invades the province of the jury. The instruction does not depart from the theory of the complaint under the general charge of negligence in running the train against and over the street car on which appellee was a passenger. It does, however, clearly invade the province of...