Louisville, E. & St. L. Consolidated R. Co. v. Hicks

• Decision Date: 05 April 1894
• Citation: 37 N.E. 43,11 Ind.App. 588
• Court: Indiana Appellate Court
• Parties: LOUISVILLE, E. & ST. L. CONSOLIDATED R. CO. v. HICKS.

11 Ind.App. 588

37 N.E. 43

LOUISVILLE, E. & ST. L. CONSOLIDATED R. CO.

v.HICKS.¹

Appellate Court of Indiana.

April 5, 1894.

Appeal from circuit court, Floyd county; Jacob Herter, Judge.

Action by Alfred J. Hicks against the Louisville, Evansville & St. Louis Consolidated Railroad Company for injuries sustained while acting as brakeman on such road. From a judgment for plaintiff, defendant appeals. Affirmed.

A. Dowling, for appellant. C. L. & H. E. Jewett and Kelso & Kelso, for appellee.

LOTZ, J.

The only error assigned in this case is the overruling of the demurrer to the complaint. The complaint is as follows: “Said plaintiff complains of said defendant, and says that on, before, and ever since the 8th day of July, 1891, said defendant was, and now is, a railroad corporation, operating a railroad from the city of New Albany, said county and state, through said county and state, to St. Louis, in the state of Missouri; that on said day this plaintiff was in the service of said defendant as brakeman on one of its freight trains, which was being pulled from Huntingburg, in Dubois county, in said state of Indiana, over defendant's said railroad, to said city of New Albany; that said train consisted of a locomotive and sixteen cars and one caboose; that two box cars were next to said locomotive, nine coal cars next to said box cars, and four box cars between said caboose and said coal cars, the said caboose being in the rear of said train; that all of said cars were loaded, the said coal cars being loaded with coal; that said train was manned with an engineer and fireman, who were on said locomotive, a conductor, who was on said caboose, and two brakemen, one of whom was the plaintiff; that five miles west of said city of New Albany said defendant's said railroad commences to descend a heavy grade down the knobs towards said city, for the distance of at least three miles; that at the beginning of said grade, near the top of said knobs, said railroad passes through a tunnel nearly one mile long; that when said train reached said down grade on said knobs, and just before it entered said tunnel, it became and was necessary, and the duty of said plaintiff and his fellow brakemen, to set the brakes of said train of cars, and to remain on the top of said cars during the passage of said tunnel and the descent of said grade; that plaintiff and his fellow brakeman set all the brakes on said cars that could be set, but that, by reason of several of said cars being equipped with brakes which were defective and out of repair,-some of them not having a lever and some of them not having chains,-the brakes thereon could not be set, and by reason thereof the said train attained a rapid and dangerous speed, and ran down said knob or hill at the rate of fifty miles per hour or more; that, when said train reached a point on said down grade at or near Hoffman's switch, it became and was plaintiff's duty to pass towards the front end of said train, and to do so he had to pass over said coal cars; that said coal cars were loaded with coal piled up from twelve to eighteen inches above the ends and sides of said cars, the said coal having no support to keep it in its place on said cars; that, in the performance of his duty as such brakeman, plaintiff was compelled to climb or jump from one coal car to another, and pass over the top of said coal with which they were loaded as aforesaid, and that in attempting to get from one of said cars to another, using due care, the coal gave way under him, and threw him off said car to the ground, thereby bruising and wounding his head, eyes, and body, from the effects of which he became and has remained sick, and has lost the use of one of his eyes, is subject to nervous prostration, and has been permanently disabled, to his damage fifteen thousand dollars. Plaintiff says that his said injuries were not occasioned by any fault upon his part, but were directly caused by the fault and negligence of the defendant; that defendant's negligence consisted, as aforesaid, in not providing and equipping its said cars with efficient brakes, and in improperly loading its said cars with said coal, none of which acts of negligence upon the part of the defendant did plaintiff know in time to avoid said accident and injuries.”

The concluding part of the complaint, in general terms, characterizes two acts as being negligent,-the failure to supply proper brake appliances, and the improper manner in which the coal was loaded. Negligence may be pleaded in general terms. This was the rule at common law, as well as under the code. The allegations must not be so general as to culminate in vagueness, and be so uncertain as to admit of almost any kind of proof. If enough be averred to show the existence of a legal duty, and its breach, a very slight designation that the act done or omitted to be done was committed or omitted in the absence of due care is sufficient to support a charge of negligence. The general allegation of negligence has a technical significance. Railway Co. v. Kurtz (Ind. App.) 35 N. E. 201. In Brinkman v. Bender, 92 Ind. 234, the concluding part of the complaint charged that a fire was caused wholly by the default and negligence of the defendant. Such averment was held to be broad enough to impute negligence to everything that the defendant did, or suffered to be done. It is here averred that the plaintiff's “injuries were not occasioned by any fault upon his part, but were directly caused by the fault and negligence of the defendant.” In a complaint founded upon the failure to perform a legal duty, the act done, or omitted to be done, should be characterized as having been negligently done, or negligently omitted to be done. Any other method of pleading negligence is extremely hazardous. Negligence, or its equivalent, must be directly averred, or such facts must be stated as that a presumption of negligence necessarily arises. Pennsylvania Co. v. Marion, 104 Ind. 239, 3 N. E. 874. It is not directly charged that the defendant negligently failed to equip the cars with proper brake appliances, or that it...