Indianapolis Southern Railroad Company v. Tucker
| Decision Date | 16 May 1912 |
| Docket Number | 7,626 |
| Citation | 98 N.E. 431,51 Ind.App. 480 |
| Parties | INDIANAPOLIS SOUTHERN RAILROAD COMPANY v. TUCKER |
| Court | Indiana Appellate Court |
Rehearing denied. Transfer denied November 27, 1912.
From Johnson Circuit Court; William E. Deupree, Judge.
Action by George L. Tucker against the Indianapolis Southern Railroad Company. From a judgment for plaintiff, the defendant appeals.
Affirmed.
James E. Kepperley, Edgar A. Brown and Frank Miller, for appellant.
Robert M. Miller, H. C. Barnett and Oral S. Barnett, for appellee.
Appellee brought this action to recover damages for personal injuries sustained by him while riding in a box-car, with a stallion which was being transported therein over appellant's railroad. The cause was tried by a jury, which returned a verdict in favor of appellee in the sum of $ 5,000, together with answers to interrogatories. Appellant's motions for judgment in its favor on the answers to the interrogatories and for a new trial were overruled, and this appeal taken.
The first question presented by appellant's assignment of errors is the sufficiency of the first paragraph of appellee's complaint. Omitting the formal parts, showing that appellant is a common carrier of passengers and freight, the first paragraph avers, in substance, that on November 4, 1908, appellant, as such common carrier, accepted from appellee at New Bargersville, Indiana, a certain horse for shipment from said point to the city of Bloomington, Indiana; that at the same time appellant accepted appellee as a passenger on said railroad and in the same box-car with said horse, and received from appellee the usual fare therefor; that when near the place of destination appellant, through its agents and employes in charge of the train, did "then and there disconnect and uncouple said car in which appellee was so riding from the engine drawing the same and all the other cars composing such train, except a certain car which was then heavily loaded with saw logs, which latter car was attached to and coupled with the said box-car in which appellee was so riding, and appellee alleges that while said two cars were so attached to each other and detached from the engine and the other cars composing said train, appellant did, through its agents and employes, negligently and carelessly, violently and with great force, start, hurl, shove and push forward, on said track, said two cars so coupled together, on and down the said track of appellant, and did then and there negligently and carelessly, shove and push, with great force and violence the said car so loaded with saw logs so attached to the one in which appellee was so riding into and against a certain locomotive engine, belonging to appellant, then and there standing and located on the said railroad track of appellants"; that the collision and sudden stopping of the car in which appellee was riding threw him violently forward and down on the car floor and against the side and end of said car, and "by reason thereof and whereby" he was so injured, etc.
Appellant asserts that this paragraph of complaint is insufficient because (1) it fails to show that the alleged "injury was the result of defendant's negligence"; (2) that plaintiff was not shown to be a caretaker, but a voluntary passenger for hire on a freight train; that he thereby assumed the risks incident to such mode of conveyance, among which are those of switching; that the occurrence alleged to have caused appellee's injury is not shown to have been other than one of the ordinary happenings in the switching of freight cars, and was therefore not due to any negligence of appellant; (3) that appellant does not come within the rule where negligence may be inferred from the alleged occurrence and injury.
By numerous decisions of this court and our Supreme Court, it has been declared that a complaint charging that certain acts were negligently done to the injury of the complainant, is sufficient to withstand a demurrer if a legal duty and the violation thereof are shown, and that under such averments proof is admissible to show the alleged negligent acts and their relation to the injury charged in the complaint. Lake Erie, etc., R. Co. v. Fike (1905), 35 Ind.App. 554, 560, 74 N.E. 636; Chicago, etc., R. Co. v. Barnes (1905), 164 Ind. 143, 150, 73 N.E. 91; Boyce v. Fitzpatrick (1881), 80 Ind. 526; Pittsburgh, etc., R. Co. v. Wise (1905), 36 Ind.App. 59, 64, 74 N.E. 1107.
The first paragraph of complaint shows that appellee was a passenger for hire on appellant's freight train, and that appellee undertook to convey him in the box-car with the horse he was shipping from Bargersville, Indiana, to the stockyards in or near the city of Bloomington, Ind. Chicago, etc., R. Co. v. Hostetter (1908), 171 Ind. 465, 84 N.E. 534. The rule applicable to a passenger on a freight train was well stated in Woolery v. Louisville, etc., R. Co. (1886), 107 Ind. 381, 385, 8 N.E. 226, 57 Am. Rep. 114, as follows: See, also, Louisville, etc., R. Co. v. Bisch (1889), 120 Ind. 549, 552, 22 N.E. 662; New York, etc., R. Co. v. Doane (1888), 115 Ind. 435, 439, 17 N.E. 913, 1 L.R.A. 157, 7 Am. St. 451; Pittsburgh, etc., R. Co. v. Hall (1910), 46 Ind.App. 219, 90 N.E. 498, 91 N.E. 743.
Among the risks assumed by appellee as such passenger were those of the sudden bumping or jerking of the cars in stopping, starting and switching in the usual and ordinary way of handling freight trains. But applying the rule as stated to the facts of this complaint, it does not appear that the hazard necessarily assumed by appellee included the risk of having the car containing his horse, and in which he was riding, "negligently and carelessly, violently and with great force" shoved and pushed down the track "into and against a certain locomotive engine" standing on the track.
Holding appellee to an assumption of the ordinary risks of a passenger on a freight train, and considering the fact that the complaint charges that appellant accepted him as a passenger in the box-car with the horse, the averments show something more than an ordinary act of switching. The law requires a railroad company, when switching as well as when running its trains, to exercise the highest degree of care for the safety of its passengers consistent with the reasonable and practical operation of such trains.
An act of switching done in the manner described in the complaint cannot be held to be the usual and ordinary mode of switching cars so loaded as in this instance. Specific averments of facts may be sufficient to overcome the general charge of negligence, but here the facts and circumstances alleged tend to support, rather than lessen, the force of the general allegations of negligence.
The first paragraph of complaint is sufficient as against the demurrer. The question on the motion to make the complaint more specific is not discussed, and is therefore waived.
Appellant and appellee both state that the case was tried on the first paragraph of complaint, and this makes it unnecessary to consider the demurrer to the second paragraph, for the error, if any, in the ruling thereon is harmless.
Appellant contends that the answers to certain interrogatories cannot be reconciled with the general verdict. The jury by its answers found that the door on the east side of the car, in which appellee was riding, opened easily, and he was told to stay away from it; that the door was partly open just before the accident, and appellee was standing near the door when the accident occurred; that appellee paid his fare from Bargersville to Bloomington, Indiana; that the train stopped at the passenger station at Bloomington; that appellee was not told to get off the car at the passenger station, nor was he told so to do by appellant's employes shortly before he was injured; that the train had passed the passenger station at Bloomington, Indiana, when the injury occurred, and appellee would not have been so injured had he left the train at the passenger station.
The jury in answer to the question, "Was plaintiff injured on November 4, 1908, at Bloomington, Indiana, by the door of the defendant's car or was he injured by his own horse?" answered "We don't know," and gave the same answer to a question which asked if appellee's hand was injured by the closing of the door, and also stated that there was no evidence showing how his hand was injured. It has been held that the answer "Do not know" is not a proper answer to a question pertinent to the issues. Buntin v. Rose (1861), 16 Ind. 209. Also that such an answer is uncertain and without effect on the case. United States, etc., Paper Co. v. Landers (1911), 47 Ind.App. 315, 93 N.E. 232.
But appellant insists that these answers show that it was guilty of no negligence causing appellee's injury; that the jury did not know how appellee was injured; that the answer "No evidence" is equivalent to a finding that appellee had failed to prove he was injured as alleged.
The complaint charges that appellee...
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