Illinois Central Railroad Company v. Cheek

• Decision Date: 27 April 1899
• Docket Number: 18,250
• Citation: 53 N.E. 641,152 Ind. 663
• Parties: Illinois Central Railroad Company v. Cheek
• Court: Indiana Supreme Court

53 N.E. 641

152 Ind. 663

Illinois Central Railroad Company v. Cheek

No. 18,250

Supreme Court of Indiana

April 27, 1899

Rehearing Denied July 7, 1899.

From the Warren Circuit Court.

Affirmed.

W. L Rabourn, J. E. Williamson and L. J. Hackney, for appellant.

J Frank Hanley, W. R. Wood, H. D. Billings, E. F. McCabe and R. Braden, for appellee.

OPINION

Jordan, J.

This action was instituted by the appellee to recover damages for the alleged negligence of appellant resulting in an injury to her on attempting to enter a passenger car on the railroad of appellant at a station at the town of Ullin, in the state of Illinois. There was a special verdict returned by the jury formulated by means of interrogatories submitted by the court under the provisions of the act of 1895, and the jury therein assessed appellee's damages in the event she was entitled to recover upon the facts found, at $ 14,000. Over appellant's motion for a new trial the court rendered judgment on the special verdict in favor of appellee for the damages assessed.

The complaint is in two paragraphs. The second paragraph, after alleging facts disclosing that the defendant is a duly organized corporation, engaged in the business of a common carrier, operating a railroad through the town of Ullin, in the state of Illinois, which line also extends into Warren county, Indiana, proceeds, inter alia, to allege substantially the following facts: The plaintiff on January 13, 1895, was the holder of a ticket which entitled her to be carried as a passenger on the defendant's cars. On said day she was at the station of the defendant's railroad, at said town of Ullin, for the purpose of taking passage over defendant's road. The defendant had negligently failed to erect and maintain at said station a platform, and on the arrival of its passenger train on that day at the station in question the train was stopped by the servants in charge thereof at a point on the track where there was no platform, and where the distance between the ground and the lowest of the steps leading to the platform of the car was three feet. It was the custom and general habit of the defendant when it stopped its trains at said station, before inviting passengers to board such trains to procure a stool or step for their use in boarding the train. After the train had stopped at the point aforesaid on the occasion in question, the defendant by its servants invited plaintiff and other passengers to board said train. The plaintiff, on approaching the train, and observing the distance between the ground and the car step, requested defendant's servants in charge of the train to procure a step or stool to assist her in reaching the car step. Said servants negligently failed and refused to procure such step or stool, but assured plaintiff that they could and would assist her safely to board the train as it then stood without the use of such step or stool. Plaintiff believed and relied upon the statements and representations of defendant's servants so made and, depending upon them for assistance, attempted to and did, board said train. The servants of the defendant, however, negligently failed to render her proper and sufficient assistance in boarding the train and, in stepping from the ground to the step on said car, plaintiff, without any fault or neglect on her part, and by reason of the great distance of the step from the ground that she was required to make, and by reason of the said negligence of defendant's servants, and of the premises aforesaid, and because of the lack of assistance from said servants, sustained severe and permanent injuries, which are particularly stated as being the displacement of the right ovary the rupture of the organs of the "pelvic and ileocolic and right inguinal region, and the straining of the right fallopian tube, and a disarrangement of the uterus, etc. The defendant moved the court to require the plaintiff to specify what particular organs of the "inguinal region" were ruptured, and in what manner and to what extent the uterus was disarranged and the right ovary displaced; to state what particular organs were ruptured, whether they were "nerves, muscles, or intestines," etc. This motion the court denied, and of this ruling appellant complains.

By the express provisions of the code, section 376 R. S. 1881, section 379 Burns 1894, section 376 Horner 1897, when the allegations of the pleading are so uncertain that the precise nature of the charge or defense is not apparent, the court may require the pleading to be made definite and certain by amendments. It is essential that the issuable facts alleged in the complaint be stated in a sufficiently certain or definite manner so as fully to inform the defendant of what is alleged against him, and thereby prepare him to meet the charge by his defense. Beyond this the pleader is not required to go. This rule is a familiar one and well settled by repeated decisions of this court. The complaint at bar certainly cannot be said to be open to the objection that it is vague or uncertain in its description of the injuries sustained by the appellee as a result of the wrong imputed to appellant, therefore the motion to make more specific was properly overruled.

Appellant demurred separately to each paragraph of the complaint. This demurrer was overruled, and in this court, instead of assigning the separate rulings on demurrer as errors, appellant has assigned only "that the court erred in overruling appellant's demurrer to appellee's complaint." By this assignment the complaint must be considered as assailed by the demurrer as an entirety, and hence, under the circumstances, both paragraphs of the complaint must be shown to be insufficient in order to render the assignment available in this appeal. Elliott's App. Proc. section 377. Therefore, we may limit our consideration relative to the sufficiency of the complaint to the second paragraph alone, for if the latter is sufficient, we need not extend our investigation to the objections urged against the first paragraph. Again, upon another view of the case, the special verdict of the jury apparently follows the material facts as averred in the second paragraph of the complaint; consequently, a correct decision upon the law may be made on the facts as set out in the special verdict, and therefore, an erroneous ruling on a demurrer to the first paragraph of the complaint, under such circumstances, will not constitute reversible error. Smith v. Wells Mfg. Co., 148 Ind. 333, 46 N.E. 1000, and cases there cited.

It is insisted by appellant's learned counsel that, under the facts disclosed by the complaint, contributory negligence must be imputed to the appellee. The facts averred in the complaint show, as heretofore stated, that appellant neglected to construct and maintain a platform at its station at the town of Ullin; that the train upon which appellee was intending to and did take passage upon the occasion in question, on its arrival at the station of Ullin, was stopped by appellant at a point on its track where there was no platform, and where the distance between the ground and the lowest step of the series of steps leading up to the platform of the car which appellee boarded was three feet. The servants of appellant in charge of the train on this occasion invited appellee to board the car in the position or at the place at which it was then standing waiting to receive passengers. It appears that it had been the custom, previously, of the defendant company at this station, before inviting passengers to enter its cars to furnish a stool to facilitate their reaching the steps leading to the platform of the car; but on the occasion of the accident it failed to make this provision, although appellee, it seems, requested that the stool be furnished for that purpose. It is true that it is disclosed by the facts that she, on approaching the train, observed the distance between the ground and the first step of the series leading up to the platform of the car, but it also appears that the servants of appellant in charge of the train, under the circumstances, gave her assurance that they could and would assist her to board the train in safety at the point where it was standing, and she, believing and relying upon their promises and assurances of safe assistance, made the effort to enter the car, and in so doing, without any fault or negligence on her part, was injured.

Counsel for appellant, among other things, insist that appellee must be held to be guilty of contributory negligence; first because of her failure to demand, before attempting to board the train, that it be placed at a point where to board the same would have been rendered more convenient and safe, and second, in attempting to board the car after she saw the distance between the ground and the car step. There are no tenable grounds urged to exempt appellant of the negligence attributed to it. That actionable negligence must be imputed to appellant, under the averments of the complaint, cannot be successfully controverted. The facts therein alleged show that the train was stopped on the occasion of the accident at the station in question at a point where there was no platform, and where the distance from the ground to the first car step was three feet. In this condition of its train, without procuring a stool or furnishing any other means to facilitate the entry to its car upon the part of passengers, it, through its servants, invited appellee to take passage upon the train, and, in addition to its invitation or direction, gave her assurances that it would assist her to board the car in safety. To reach the lowest step of the car it appears that it became necessary, under the circumstances, for her to step...