Lake Erie and Western Railroad Company v. Molloy

• Decision Date: 28 March 1922
• Docket Number: 11,163
• Citation: 134 N.E. 913,78 Ind.App. 72
• Parties: LAKE ERIE AND WESTERN RAILROAD COMPANY v. MOLLOY
• Court: Indiana Appellate Court

134 N.E. 913

78 Ind.App. 72

LAKE ERIE AND WESTERN RAILROAD COMPANY v. MOLLOY

No. 11,163

Court of Appeals of Indiana

March 28, 1922

From Delaware Circuit Court; William A. Thompson, Judge.

Action by William J. Molloy against the Lake Erie and Western Railroad Company. From a judgment for plaintiff, the defendant appeals.

Affirmed.

Silverberg Bracken & Gray and John B. Cockrum, for appellant.

Ermel E. Lindsey and White & Haymond, for appellee.

OPINION

MCMAHAN, J.

This is an action by appellee to recover damages for injuries to an automobile alleged to have been caused by reason of appellant's negligence. The complaint, omitting the formal parts thereof, alleged that appellant's railroad with two main and several switch tracks crossed Walnut street, a main and constantly traveled street in the city of Muncie; that immediately west of said street and south of the railroad tracks are buildings, sign-boards and switch tracks on which freight cars were left standing so that the view from the street to the southwest was completely obstructed; that appellant for many years kept a flagman at said crossing, and that at the time mentioned in the complaint it was "the duty of said flagman to keep a lookout for locomotive engines and trains of cars approaching said street on defendant's railroad tracks and to warn" persons traveling over such crossing of the approach of cars, etc.; that when engines or trains approached "said watchman's duty is to blow a whistle and stand in the middle of the street displaying a sign upon which is the word 'Stop;'" that when the watchman did not so flag the crossing, persons driving or walking, crossed said tracks, as the absence of the watchman designated that no engine or cars were approaching. On May 2, 1920, appellant had a cut of cars on its south switch track within three feet of the west line of said street; that as appellee was driving on said street approaching said tracks from the south, he was, by reason of said buildings, sign-boards and cut of cars, unable to see any train approaching from the southwest on the main track; that as he approached said tracks he reduced his speed to not more than eight miles an hour, and looked each way as far as his vision extended and listened attentively for approaching trains, but saw no train approaching; that as he approached said crossing he reduced the speed of his automobile and looked for appellant's flagman who was not to be seen, and relying upon the absence of said flagman as meaning that no engine or train of cars was approaching, and that it was safe for him to drive over said tracks, he proceeded, and as he drove upon said tracks, and just as he reached them, appellant "carelessly and negligently backed a cut of cars from the southwest upon its said tracks without blowing the whistle or ringing the bell or giving any signal or notice whatsoever of the approach either from the flagman or train crew and carelessly and negligently backed its said cars upon and against plaintiff's said automobile with great force and violence" thereby causing such destruction to such automobile that it was beyond repair and no longer fit for use by reason of which appellee was "damaged in the sum of two thousand dollars;" that the damage was without any fault or negligence on the part of appellee.

The second paragraph is not set out in the briefs, but appellant says it is substantially the same as the first except that it alleges that during the year 1911, the city of Muncie passed an ordinance requiring appellant to employ and station at streets in said city crossed by appellant's railroad a suitable person whose duty it should be to remain at such crossings and warn persons of the approach of trains and that for such purpose such persons should be provided with suitable flags.

The questions presented arise upon the overruling of a motion to make each paragraph of complaint more specific and of the demurrers to each paragraph of the complaint and a motion for a new trial.

Appellant filed a motion to make the complaint more specific in the following particulars: (1) To state specifically in the first paragraph the facts from which arose the alleged duty of the flagman to keep a lookout and to warn people driving over the crossing of the approach of cars; (2) to state specifically in the first paragraph the facts from which arose the watchman's duty to blow a whistle, etc.; (3) and (4) to state definitely in the first paragraph wherein appellant negligently backed the cut of cars across the street and to state the facts constituting the alleged negligence; (5) to state specifically in each paragraph the nature and extent of the damages to the automobile; (6) to state specifically in each paragraph wherein appellee was damaged $ 2,000; (7) to make a copy of the city ordinance part of the complaint; and (8) the same as the third and fourth except it applied to the second paragraph of the complaint. This motion was overruled, to which appellant excepted.

The Supreme Court in Terre Haute, etc., Traction Co. v. Phillips (1921), 191 Ind. 374, 132 N.E. 740, in discussing the effect of overruling of a motion to make more specific said:

"This must be deemed a decision by the trial court, procured by and binding upon the appellee, adjudging that all the facts known to and relied on by the appellee tending to support such general averments were already stated in this paragraph of the complaint. A statute now provides that recitals and conclusions in a pleading shall be deemed an allegation of the facts so recited and of the facts necessary to sustain such conclusions, so far as they are 'necessary to the sufficiency of such pleading,' subject to the right of the adverse party, by motion, to require that the facts to sustain the conclusions shall be set out. § 343a Burns' Supp. 1921, Acts 1915 p. 123. This can only mean that where a proper motion to make the pleading more specific by setting out the facts is duly made, and is overruled, the pleading must be regarded as already stating specifically the facts relied on to support the conclusions to which such motion was addressed. And as so understood appellant was not harmed in this instance by the ruling on its motions."

In harmony with this authority we hold that there was no reversible error in overruling the motion to make more specific.

Appellant's demurrer was for want of facts, and was accompanied by a memorandum that the complaint was insufficient for the following reasons: "(1) Each paragraph of the complaint discloses on its face that the damages to the plaintiff's automobile were not proximately caused by any negligent act on the part of the defendant. (2) Each paragraph of complaint discloses on its face that the proximate cause of the damage to plaintiff's automobile was plaintiff's own contributory negligence."

In determining the sufficiency of the complaint to withstand the demurrer we must disregard all conclusions of law and look only to the facts and conclusions of facts alleged in the complaint. Disregarding therefore the allegations relative to the "duty" of the flagman as being conclusions of law, each paragraph alleges that appellant for many years had kept a flagman at the crossing in question, and that when such flagman did not warn or flag the crossing, people would cross the tracks on said streets as the absence of the flagman designated that no engine or cars were approaching; that on the day of the accident appellee approached the crossing from the south, but because of the buildings, sign-boards and freight cars on appellant's side track, he was unable to see any train approaching; that he reduced the speed of his automobile to not more than eight miles an hour and looked and listened for approaching trains; that he looked and watched for the flagman who was not to be seen, and relying upon the absence of the flagman as indicating that no engine or train of cars was approaching, and that it was safe for him to drive over the tracks, he drove over the tracks, and just as his automobile reached the tracks appellant negligently backed a cut of cars upon its track without blowing the whistle, ringing the bell, or giving any signal whatever of the approach of such cars, either from the flagman or train crew and negligently backed said cars against appellee's automobile with great violence thereby causing such damages to the automobile that it was beyond repair, all of which was alleged to have occurred by reason of the facts therein alleged and without any negligence on the part of appellee.

Appellant's...