Louisville, N.A. & C. Ry. Co. v. Schmidt

• Decision Date: 10 March 1886
• Citation: 106 Ind. 73,5 N.E. 684
• Parties: Louisville, N. A. & C. Ry. Co. v. Schmidt, by his Next Friend.
• Court: Indiana Supreme Court

106 Ind. 73

5 N.E. 684

Louisville, N. A. & C. Ry. Co.

v.Schmidt, by his Next Friend.¹

Supreme Court of Indiana.

Filed March 10, 1886.

Appeal from Floyd circuit court.

Geo. W. Friedley and A. Dowling, for appellant.

J. R. W. Smith and D. C. Anthony, for appellee.

Elliott, J.

The second paragraph of the appellee's complaint alleges that the appellant owns and operates a railroad extending through the city of New Albany; that on the tenth day of September, 1883, the appellee was in the act of crossing Fifteenth street, in that city, at the intersection of Sycamore street; that the “defendant, by its employes then and there in charge, undertook to run a train of cars loaded with coal on and along Fifteenth street, and over the said intersection, and to then and there throw said train of loaded cars upon a side track of said railroad while the cars were in motion; that, to accomplish such purpose, the defendant's employes then and there wrongfully, willfully, and in utter disregard of human life, unlawfully put the said train of cars in motion at a high rate of speed, and, while the same was so rapidly moving, uncoupled the cars so loaded, from the engine attached thereto, and willfully an recklessly permitted the same to move with great rapidity along said Fifteenth street over and past said intersection so detached, and wholly unattended and uncontrolled, except by a single brakeman at the extreme rear end thereof, and without any signal thereon of any kind to warn persons of their approach,-by reason whereof plaintiff says, while he was crossing said street as aforesaid, he was then and there struck with great violence by the said detached train, knocked down, and under the wheels thereof.”

We have set forth the material parts of the pleading for the reason that its sufficiency depends entirely upon whether it charges a willful tort or a negligent act, and this question can only be determined from a study of the pleader's language. It is firmly settled that a complaint which seeks to recover for injuries arising from negligence must aver specifically that the plaintiff was free from contributory fault, or must state facts showing that his own negligence did not proximately contribute to the injury. There is no such averment in the pleading before us, nor are there any facts pleaded showing that there was not contributory negligence on the part of the plaintiff. If, therefore, the complaint is to be construed as making a case of negligence, it must be held bad. A pleading is to be judged from its general scope, and not from the detached phrases or epithets cast into it. City of North Vernon v. Voegler, 103 Ind. 314, see page 317; S. C 2 N. E. Rep. 821; W. U. Tel. Co. v. Reed, 96 Ind. 195, see page 198; ...