Louisville v. Buck

• Decision Date: 10 January 1889
• Citation: 116 Ind. 566,19 N.E. 453
• Parties: Louisville, N. A. & C. Wry. Co. v. Buck.
• Court: Indiana Supreme Court

116 Ind. 566

19 N.E. 453

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

v.Buck.¹

Supreme Court of Indiana.

January 10, 1889.

Appeal from circuit court, Benton county; John M. La Rue, Special Judge.

Action by James Buck, administrator of George H. Bennett, deceased, against the Louisville, New Albany & Chicago Railroad Company to recover damages for alleged negligence of defendant resulting in death of intestate. Defendant appeals from a judgment for plaintiff.

Geo. W. Easley, Geo. W. Friedley, and Geo. R. Eldridge, for appellant. E. P. Hammond, Wm. B. Austin, and Coffroth & Stuart, for appellee.

Mitchell, J.

Buck, as administrator of the estate of George H. Bennett, deceased, commenced suit against the Louisville, New Albany & Chicago Railway Company, alleging that the company had wrongfully caused the death of the decedent, to the damage of his surviving widow and child. The complaint was in three paragraphs. It is charged in the first two paragraphs that the intestate was in the employ of the railway company as brakeman, and that he was fatally injured while uncoupling cars on account of dangerous and defective appliances and machinery which the company negligently supplied. The same facts, substantially, were stated in the third paragraph, with the additionthat the accident and fatal injury to the plaintiff's intestate were caused by the careless and negligent habits, and by the incompetency, of the engineer who had control of the engine at the time the accident happened, and that the incompetency and negligent habits of the engineer were known to the company and unknown to the intestate. No question is made as to the sufficiency of the complaint, except it is urged that it does not sufficiently appear by any averment therein that the widow or child of the decedent sustained damage in anywise on account of the defendant's negligence.

The averments in the complaint relevant to the point thus made are that Bennett was in the employment of the defendant as brakeman at the time of his death, and that he left surviving him, as his next of kin and only heirs, his widow, Fidella J. Bennett, and his daughter, Longretta May Bennett, both of whom are still living,-the latter being four years of age. It is also averred that “said administrator brings this action for the use and benefit of said widow and child, who, by reason of the death of said decedent, as aforesaid, have sustained damages in the sum of $10,000.

For the appellant it is insisted that the general averment that the widow and child of the decedent had sustained damages in a specified sum was not sufficient, but that the pecuniary loss, either present or prospective, resulting to them from the intestate's death should have been specially pleaded. Regan v. Railway Co., 51 Wis. 599, 8 N. W. Rep. 292, is relied on to sustain the view thus contended for.

Without pointing out the distinction between the case cited and that under examination in respect to the question involved, it is sufficient to say it appears in the complaint in the present case that the decedent was, at the time of his death, in the employ of the railroad company as a brakeman, and that he left a widow and one child four years old. It is an unavoidable inference, therefore, that he was in the vigor of manhood, and that he was at the time engaged in earning money for the support of his wife and child. Kelley v. Railway Co., 50 Wis. 381, 7 N. W. Rep. 291. Section 284, Rev. St. 1881, gives a right of action to the personal representative for the benefit of the widow and children or next of kin of one whose death has been caused by the wrongful act or omission of another, provided the former could have maintained an action against the latter had he lived. While there is some discord in the decisions of courts in respect to the right to maintain the action, even for nominal damages, without averring and proving actual pecuniary loss by those for whose benefit the suit is brought, there can be no doubt but that, within the rule generally prevailing, the law will imply substantial pecuniary loss in some amount to the wife and child from the death of one who sustained the relation of husband and father to them, and who was at the time presumably receiving wages, and who was therefore possessed of the ability to discharge his obligation to support those dependent upon him. Railroad Co. v. Weber, 33 Kan. 543, 6 Pac. Rep. 877;Houghkirk v. President, 92 N. Y. 219; 1 Shear. & R. Neg. (4th. Ed.) § 137.

Whatever the rule may require as applied to other cases, and in respect to the quantum or character of proof on the subject of pecuniary loss, there can be no doubt but that a general averment of damages in a case like the present is sufficient as against a demurrer to the complaint. It may be well to observe here, as applicable to this question, which is presented in another aspect later on in the record, that no precise rule for estimating the loss recoverable under the statute can be laid down. When the relation of the party whose death has been caused, to those for whose benefit the suit is being prosecuted, has been shown, and his obligation, disposition, and ability to earn wages or conduct business, and to care for, support, advise, and protect those dependent upon him, the matter is then to be submitted to the judgment and sense of justice of the jury. Commissioners v. Legg, 93 Ind. 523;Tilley v. Railroad Co., 29 N. Y. 282;Castello v. Landwehr, 28 Wis. 522.

The jury returned a special verdict, which, so far as they are material to the questions for decision, exhibited the following facts: The deceased, a man about 30 years of age, in good health, and of industrious habits, was in the employment of the defendant railway company as brakeman on a freight train. On Sunday night, November 25, 1883, the train of which he was one of the crew left Michigan City for La Fayette. Between 9 and 10 o'clock the train was stopped at the crossing of the Pan Handle Railroad for the purpose of taking on more cars. It was part of the duty of the decedent to couple and uncouple cars which were to be attached to or detached from the train. Soon after the train stopped, he went in between the engine and the car attached to it for the purpose of uncoupling the car from the engine. The car was loaded with lumber, and belonged to the defendant company, but the decedent had never seen it until after it was loaded, when starting from Michigan City. The reach-rod which, when properly adjusted, held the brake-beam in place, was, and had been for several days, absent from the brake-beam, in front of the wheels on the car next the engine. The absence of this rod was unknown to the decedent, but the jury find that it was or might have been known to the defendant. Its absence caused the beam to hang lower and more forward than it otherwise would have done; but the fact that the rod was gone was not discoverable except by one stooping down and looking under the car. While attempting to uncouple the car, being for some reason unable to get the coupling-pin out of the draw-bar, the decedent held the pin up as far as he could get it, and then signaled the engineer to move the engine forward. The engineer obeyed the signal, but immediately, and without warning, reversed the lever, and threw the engine back, crowding the decedent against the car, and then again moved forward. While so crowded back, and before he could recover or extricate himself from his position, the decedent's feet were caught by the defectively attached break-beam, and he was thrown under and run over by the car, which was moving forward. In this way he received injuries which are particularly described, and which resulted in his death the following morning. It was found that the decedent left a widow and child, as alleged in the complaint, and that they were damaged by his death in a specified sum. There was judgment for the plaintiff accordingly.

The appellant insists that the judgment ought to be reversed, and urges as one of the reasons that the jury found that the injury which resulted in the intestate's death was received on Sunday, while he was engaged at common labor in pursuance of a contract with the railway company, and that it was not made to appear that the work about which he was engaged was a work of necessity. We had occasion to consider this question in Railway Co. v. Frawley, 110 Ind. 18, 9 N. E. Rep. 594, where it was presented in substantially the same manner as in the present case. Our conclusion there was that a person injured by the negligent omission of another to perform a legal duty would not be denied a recovery, even though it appeared that the injured person was, at the time of receiving the injury, acting in disobedience of his collateral obligation to the state, which required of him the observance of the Sunday law. If the railway company violated its duty by furnishing machinery and appliances which it knew were defective, the danger to an employe who was required to use the appliances, in ignorance of their defective condition, was the same on one day as on another. That they were being used on Sunday rather than on Monday neither contributed to, nor was it the efficient cause of, the injury which gave rise to this action, nor can the railroad company now interfere and become the champion of the Sunday law as an excuse for its wrong, or to defeat a recovery. Sutton v. Wauwatosa, 29 Wis. 28. It is quite true that a plaintiff will in no case be permitted to recover when it is necessary for him to prove his own illegal act or contract as a part of his cause of action, or when an essential element of his cause of action is his own violation of law. Holt v. Green, 73 Pa. St. 198; Coppell v. Hall, 7 Wall. 558;Steele v. Burkhardt, 104 Mass. 59;McGrath v. Merwin, 112 Mass. 467. But where he can prove his cause of action without proving that he was violating the law, even though it appears incidentally that he was at the time...