Ivens v. The Cincinnati, Wabash and Michigan Railway Company
| Decision Date | 15 September 1885 |
| Docket Number | 11,061 |
| Citation | 2 N.E. 134,103 Ind. 27 |
| Parties | Ivens v. The Cincinnati, Wabash and Michigan Railway Company |
| Court | Indiana Supreme Court |
From the Huntington Circuit Court.
Judgment affirmed, with costs.
J Brownlee, for appellant.
C Cowgill, H. B. Shiveley and C. E. Cowgill, for appellee.
Appellant was injured in a collision with one of appellee's trains and brought this action to recover damages. A demurrer was sustained to the second paragraph of his complaint. That ruling presents the only question for decision here. In the formal part of the paragraph, it is charged that appellee, by its agents and servants, wrongfully, negligently, carelessly, wilfully and purposely, ran one of its trains upon appellant, and wounded and crippled him, without any negligence on his part. Immediately following this is the averment, "which injury was done and caused as follows:" (Here follows a specific statement of all the circumstances under which the injury was received.) The leading facts in this specific statement may be summarized as follows: Appellee had a depot east of and near to the town of Fairmount. The railroad track extends north and south. Appellee's trains were accustomed to stop at the depot to receive and discharge passengers and freight, and to take water. Appellant resided in the town, and had to cross the railroad in reaching a flax-straw mill, where he was at work, about one hundred and fifty years northeast of the depot. On the morning of the injury, he, with others, crossed the track and went to the mill. After they had reached the mill, they were directed to go to a field situated on the west side of the railroad track, and about five hundred yards north of the depot. In going to the field, they went west to the railroad track, and appellant walked north upon a side-track for about one hundred and fifty yards, to a junction of the side-track with the main track. From this point, he walked north on the main track about fifty feet, at which place and time he was struck by the train going north from the depot. When he went upon the track, he did not know that a train had arrived at the depot. No signals of the arrival or departure of the train were given. It is averred that he knew of the duty of the company to give signals, and relied upon the performance of that duty, and that if such signals had been given, he would not have gone upon the track, or would have left it. From the depot to where appellant was injured, the track is straight, with nothing to obstruct the view. It is averred further, that the only convenient, passable, proper and usual way north from the depot, and a public highway, to and beyond where appellant was injured, is upon the railroad track, there being no room or space on either side thereof for persons to pass and repass.
If the case is to be treated as one based upon negligence, it is very clear that the second paragraph of the complaint does not state a cause of action, because it shows that appellant was guilty of contributory negligence. There is a general averment that the injury was inflicted without any fault or negligence on the part of appellant. If the complaint had stopped there, it would have been sufficient as to the want of negligence on the part of appellant, under the rulings of this court. City of Evansville v. Worthington, 97 Ind. 282. The pleader, however, proceeded to state the specific facts and circumstances upon which the general averment is based. These specific statements must control the general averment, and they overthrow the general averment that appellant was injured without any fault or negligence on his part.
It appears from the specific averments, that...
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Ivens v. Cincinnati
... ... It is averred that he knew of the duty of the company to give signals, and relied upon the performance of that duty, and that if ... ...