Lake Erie & W.R. Co. v. Moore

• Decision Date: 26 April 1907
• Docket Number: No. 5,850.,5,850.
• Citation: 81 N.E. 85,42 Ind.App. 32
• Parties: LAKE ERIE & W. R. CO. v. MOORE.
• Court: Indiana Appellate Court

42 Ind.App. 32

81 N.E. 85

LAKE ERIE & W. R. CO.

v.MOORE.

No. 5,850.¹

Appellate Court of Indiana, Division No. 1.

April 26, 1907.

Appeal from Circuit Court, Hamilton County; L. S. Baldwin, Special Judge.

Action by Burney Moore against the Lake Erie & Western Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed with instructions.

Jno. B. Cockrum, Shirts & Fertig, and Hawkins, Smith & Hawkins, for appellant. P. J. Fariss, W. S. Christian, and Gavin & Davis, for appellee.

WATSON, J.

This complaint was in two paragraphs by the appellee against appellant for damages for personal injuries, alleging negligence on the part of the appellant. Demurrers were filed to each of these paragraphs, overruled and proper exceptions saved, cause put at issue, trial by jury, and a verdict for $1,000, together with answers to 72 interrogatories, were returned. Motion for judgment by the appellant on interrogatories overruled, exceptions; also motion for new trial overruled, and exceptions. The errors assigned are the overruling of the demurrers to the first and second paragraphs of amended complaint, overruling of the motion for judgment on interrogatories, and the overruling of the motion for new trial. The appellee insists that no question is presented by the demurrers, for the reason that they are not set out in full in appellant's brief, as required by clause 5 of rule 22 (55 N. E. vi) of this court. We think the appellant sufficiently complied with this rule in this respect.

The first paragraph charges negligence on the part of the appellant in operating its train at the time of the accident. It has been held by this court that, when the complaint contains a general allegation of negligence, it is sufficient to withstand a demurrer for want of facts. The demurrer was therefore properly overruled. Baltimore & Ohio Southwestern R. Co. v. Reynolds, 33 Ind. App. 219, 71 N. E. 250;Louisville & Nashville R. R. Co. v. Bates, 146 Ind. 564, 45 N. E. 108;Cleveland, etc., v. Berry, 152 Ind. 607, 53 N. E. 415, 46 L. R. A. 33.

The theory of the second paragraph is the negligence of the defendant in running its train in violation of the ordinance of the town of Cicero. Leaving off the formal averments, the complaint is as follows: “That said railroad crosses all the main streets of said town which run east and west, and that Cass street, upon which plaintiff was traveling at the time he was injured, runs east and west, and crosses said railroad at about right angles, and is a public street, and is much used by the traveling and general public; that on or about the 26th day of December, 1903, and prior thereto, defendant was the owner of said railroad and engine and train of cars hereinafter mentioned, and that on the north side of Cass street and east of said railroad crossing were located large numbers of dwelling houses, and an elevator and mill, and sidetrack of defendant on which freight cars were standing, which obstructed the view of said railroad north of said crossing, as said crossing is approached from the east, and, on account of said obstructions, plaintiff as he approached the same from the east could not see or hear any engine or train of cars approaching from the north on the day and time that he received his injuries, which was on or about said 26th day of December, 1903; and that on said day plaintiff was driving west on said Cass street, with a team of horses hitched to a carriage, in which carriage plaintiff was seated, and while he was so driving, and as he approached and entered upon said railroad crossing, he proceeded carefully and exercised all due care and caution, and looked and listened for any engine or train of cars that might be approaching from the north or south on said railroad, and as he was passing over and on said railroad on said crossing, and at the intersection of said railroad and Cass street, said defen...