Indianapolis St. Ry. Co. v. Robinson

• Decision Date: 03 October 1901
• Citation: 157 Ind. 232,61 N.E. 197
• Parties: INDIANAPOLIS ST. RY. CO v. ROBINSON.
• Court: Indiana Supreme Court

157 Ind. 232

61 N.E. 197

INDIANAPOLIS ST. RY. CO

v.ROBINSON.

Supreme Court of Indiana.

Oct. 3, 1901.

Appeal from circuit court, Morgan county; Milton H. Parks, Judge.

Action for injuries by Ardella C. Robinson against the Indianapolis Street Railway Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Chambers, Pickens & Moores, F. Winter, and W. H. Latta, for appellant. Ritter & Doan, for appellee.

DOWLING, J.

Appellee was at a station on the line of the railway of the appellant, and intended to take passage upon one of appellant's cars. While walking with a crowd of persons over a platform maintained by appellant at the station, a board in the floor gave way, and the appellee fell through the opening so made, and was severely injured. To a complaint stating these, with other facts, the appellant demurred. The demurrer was overruled. An answer in denial was filed, the cause was tried by a jury, and a verdict was returned for the appellee. A motion in arrest of judgment was overruled. The sufficiency of the complaint is called in question by assignments of error upon these rulings. The points presented on this appeal are whether the complaint should have alleged that the accident occurred without contributory negligence on the part of the appellee, and, if so, whether such contributory fault is sufficiently negatived. The appellant relies upon the propositions (1) that it was necessary to aver that the plaintiff was free from negligence proximately contributing to the injuries complained of, and that the act of February 17, 1899 (Acts 1899, p. 58; Burns' Rev. St. 1901, § 359a), dispensing with that allegation, is unconstitutional, because the statute undertakes to regulate the practice in courts of justice, and is not a general law; and (2) that the complaint omits this essential averment. The act of February 17, 1899, is in these words: “Section 1. That hereafter, in all actions for damages brought on account of the alleged negligence of any person, co-partnership, or corporation, for causing personal injuries, or the death of any person, it shall [not?] be necessary for the plaintiff in such action to allege or prove the want of contributory negligence on the part of the plaintiff, or on the part of the person for whose injury or death the action may be brought. Contributory negligence on the part of the plaintiff, or such other person, shall be a matter of defense, and such defense may be proved under the answer of general denial: provided, that this act shall not affect pending litigation.” At common law, in actions for negligent injuries, it was never necessary to aver that the plaintiff was without fault. 2 Chit. Pl. 708-712; Hackford v. Railroad Co., 6 Lans. 381;Id., 43 How. Prac. 247. It is said in 5 Enc. Pl. & Prac. 1, that “the authorities are well-nigh unanimous that, in an action for negligence, the plaintiff need not allege that the injury of which he complains was occasioned without his fault, or that he was not guilty of contributory negligence, as the rule is that ‘it is not necessary to allege matters which would come more properly from the other side,’ and contributory negligence is considered a defense that the defendant must make.” Among the earliest cases in this court which have been understood to hold that the complaint must aver the absence of contributory negligence on the part of the plaintiff was President v. Dusouchett, 2 Ind. 586, 54 Am. Dec. 467, where it is said by Blackford, J., that “the declaration in a suit for such damages must show that there was no fault on the plaintiff's part.” By a uniform course of decision, it was settled in this state that such an averment, or its equivalent, was indispensable in such actions, unless the specific averments of the complaint showed that the plaintiff was free from fault. This rule of pleading and evidence applied, equally, to actions for injuries to the person and to those brought for injury to property. Such was the state of the law when the act of February 17, 1899, was passed. The object and effect of that statute were to change an established rule of pleading and evidence. In the class of actions named in the statute, it relieved the plaintiff from averring and proving that he was free from contributory fault, and it made such contributory negligence, if it existed, a matter of defense. Was it competent for the legislature to do this? The authority of the legislature over the subject of the statute in question is indisputable. It has the power to prescribe rules of pleading and evidence, and methods of proof. State v. Kolsem, 130 Ind. 434, 29 N. E. 595, 14 L. R. A. 566;State v. Beach, 147 Ind. 79, 46 N. E. 145, 36 L. R. A. 179.

The constitution of the state expressly prohibits the passage of local or special laws regulating the practice in courts of justice, and it requires that, in all the cases enumerated in section 22, art. 4, all laws shall be general, and of uniform operation, throughout the state. Const. art. 4, §§ 22, 23; Burns' Rev. St. 1901, §§ 118, 119. The mischief under the constitution of 1816 was that there was a total lack of uniformity in the statutes regulating the practice in the different courts and counties of the state. In Reed v. State, 12 Ind. 641, 648, Hanna, J., thus describes the condition of things resulting from the vicious system of legislation under the old constitution: “It is well known that in many of the circuits of the state the judge thereof was at a loss, in each county, as...