Louisville, New Albany And Chicago Railway Co. v. Lynch

• Decision Date: 15 October 1896
• Docket Number: 17,733
• Parties: Louisville, New Albany and Chicago Railway Company v. Lynch
• Court: Indiana Supreme Court

44 N.E. 997

147 Ind. 165

Louisville, New Albany and Chicago Railway Company v. Lynch

No. 17,733

Supreme Court of Indiana

October 15, 1896

Rehearing Denied March 9, 1897, Reported at: 147 Ind. 165 at 175.

From the Starke Circuit Court.

Affirmed.

E. C Field, W. S. Kinnan and Walter Olds, for appellant.

J. C Nelson, Q. A. Myers, Steis & Hathaway and G. W. Breeman, for appellee.

OPINION

Hackney, J.

The appellee sued the appellant and recovered a judgment for damages on account of personal injuries, sustained from a missile thrown against him by the explosion of appellant's locomotive boiler. The allegations of the complaint charging the negligence of the appellant were as follows: "That the locomotive engine thus used by the defendant, and which exploded, as heretofore mentioned, was, at the time it so exploded, and for a long time prior thereto, defective, unsafe, and unfit to use for the purposes intended by the defendant, in this, to-wit: That the same was old and worn out; that the stay bolts of the boiler were worn out and burned in two, and that the same was otherwise defective, unknown to plaintiff, and of which defectiveness, unsafeness and unfitness the defendant had full knowledge, or by reasonable diligence could have known the same; and plaintiff avers that the defendant negligently and recklessly used and attempted to use the same, as aforesaid, with full knowledge of its defectiveness and unsafe condition, or of which it could have known by reasonable diligence, and by reason of which negligence and carelessness of the defendant the said locomotive engine exploded, as hereinbefore mentioned, causing the injury of the plaintiff herein complained of."

The appellant insists that its demurrer to the complaint should have been sustained for the reason, as here urged, that it does not appear from the facts alleged that the explosion resulted from any of the defects mentioned. On behalf of the appellee it is urged that the allegations sufficiently connect the result with the causes so alleged; that a motion to make more specific was the proper practice for presenting the appellant's objection to the complaint, and that the special verdict returned distinctly connects the causes alleged, the defects in the locomotive, with the explosion, and thereby cures any weakness in that respect which might be urged against the complaint.

A fair construction of the allegation is that the locomotive was defective, including worn out and burned stay bolts of the boiler, and that by the use of the locomotive in that condition the explosion occurred. The condition, with the use alleged, was the cause, and the explosion the effect. If, as we think it may, the allegation in question may be regarded as a general allegation of negligence resulting in injury, and the appellant's objection was, as we think it is in effect, that such allegation is not sufficiently full, clear and specific, such objection could not be reached by demurrer, but required a motion to make more specific. Cleveland, etc., R. W. Co. v. Wynant, 100 Ind. 160; Deller v. Hofferberth, 127 Ind. 414, 26 N.E. 889; Louisville, etc., R. W. Co. v. Berkey, Admr., 136 Ind. 181, 35 N.E. 3, and cases cited in each. We conclude, therefore, that the objection urged against the complaint is not available.

Some of the special findings of the jury were as follows:

"3d. We find that the plaintiff, Michael Lynch, was at the time of the explosion of said engine engaged in handling hay near a certain barn, situated about one hundred feet west, and off the defendant's right of way; and that the engine exploded when almost opposite, and due east from where the plaintiff was engaged at his said work.

"5th. We find that the said engine was at the time of said explosion out of repair, unsafe and defective, and in a dangerous condition.

"6th. That the boiler, fire-box, and part of stay bolts between said boiler and said fire box of said locomotive engine were worn out, weakened and broken prior to said explosion, and so remained until said explosion, and thereby said boiler and fire box were insufficient and unable to retain or hold or resist the pressure of steam in the boiler of said locomotive engine.

"7th. We further find that said engine, numbered sixty, that exploded on January 3, 1893, while being handled by defendant company at Francesville, Indiana, had broken bolts, called 'stay bolts,' and that such broken bolts gave no support or strength to the boiler of said engine at the time it exploded; that said broken bolts were located at the left side of the fire box of said engine, and that the explosion occurred at that part of the boiler where such broken bolts were located.

"8th. That the defendant did know, or could have known, prior to the happening of the explosion, in time to have remedied the same, that said bolts were broken.

"9th. We further find that defective stay bolts can be detected by placing a piece of iron on one side and tapping the same with a hammer on the other; that if the bolts are broken or defective they give a dull sound; that said bolts can be removed and new ones put in.

"10. That there were, at the time of the explosion, forty-five broken bolts in the left hand fire sheet, which were in that condition for at least four weeks prior to the accident.

"11th. That a boiler having that number of broken bolts in a fire sheet on one side is not of sufficient strength to resist the pressure of one hundred and forty pounds of steam.

"15. We find that said engine, numbered sixty, was at the time of said explosion old and much worn and was, before said explosion, out of repair; that her boiler and pipes were old and worn and leaky; that the stay bolts of the boiler and fire box were rusty, corroded and broken before said explosion, and that the defendant company had full knowledge of the worn out and defective condition of said engine, as aforesaid, during said time, and carelessly and negligently permitted said engine to run over its said road."

By the fifteenth finding it appears that the appellant had knowledge of the condition of the locomotive "during said time." The quoted words evidently refer to the period found in the tenth finding, "four weeks prior to the accident," during which there were forty-five broken stay bolts in the fire sheet. The fact that actual knowledge prior to the explosion, was proven to have been possessed by the appellant is earnestly denied by her counsel. We find that one witness testified to having served the appellant, as engineer, in running the locomotive in question from the 15th to the 22d of December, 1892, the explosion having occurred on the 3d day of January, 1893, and that during that period he observed that there were leaks in the flues, flue...