Louisville v. Jones
Decision Date | 14 December 1886 |
Citation | 108 Ind. 551,9 N.E. 476 |
Court | Indiana Supreme Court |
Parties | Louisville, N. A. & C. Ry. Co. v. Jones. |
OPINION TEXT STARTS HERE
Appeal from circuit court, Lawrence county.Geo. W. Friedley, for appellant. M. S. Mavity, Wm. J. Throop, M. F. Dunn, and Hill & Lamb, for appellee.
It is alleged in appellee's complaint that in June, 1882, appellant was the owner of a railroad, and employed as common carrier, in transporting passengers over the same for hire; that in that month she purchased a ticket from its agent at Orleans, in this state, by virtue of which, the consideration paid therefor, and the contract and agreement made by appellant, she became entitled to be safely and securely carried from Orleans to Greencastle Junction; and that, possessing the ticket so purchased, and in pursuance of the agreement of appellant, she went upon one of its regular passenger trains at Orleans, and into a passenger coach forming a part of that train, to be carried from that station to Greencastle Junction.
That portion of the complaint which alleges appellee's injuries, and charges appellant with negligence, is as follows:
Appellant's demurrer to the complaint was overruled. That ruling is one of the alleged errors upon which its counsel rely for a reversal of the judgment against it in favor of appellee.
The main and general objections urged to the complaint by appellant's counsel are that there is no averment that appellant, or its servants, were guilty of any careless act or omission in the actual running of the train; that there is no averment that the train left the track because of the curve, the insufficiency and imperfection of the locomotive, the rails, ties, or track, nor that such insufficiency caused the injury, or contributed thereto. In our own judgment, those objections, and others urged by counsel, have not such a basis upon which to rest as requires a holding that the demurrer to the complaint should have been sustained. The statute provides that the facts constituting the cause of action shall be stated in the complaint in such a manner as to enable a person of common understanding to know what is intended, (Rev. St. 1881, § 338;) and that in the construction of a pleading, for the purpose of determining its effect, its allegations shall be liberally construed, with a view to substantial justice between the parties, (Rev. St. 1881, § 376.) Dickensheets v. Kaufman, 28 Ind. 251. It is well settled, too, that a pleading must be taken as a whole, and construed according to its general scope and tenor. Fleetwood v. Dorsey Machine Co., 95 Ind. 491, 493, and cases there cited; Starret v. Burkhalter, 86 Ind. 439, 444.
Taking the complaint as a whole, the charges of negligence therein may be summarized as follows: Appellant, by its agents and servants, carelessly and negligently used a defective locomotive, not suitable nor sufficient to draw a passenger train at a high rate of speed; and, using that locomotive, it carelessly and negligently ran the train at the dangerous rate of 50 miles per hour; and was guilty of carelessness and negligence in running the train at that rate, with the defective locomotive, upon a down grade, without applying brakes, and around a curve not properly elevated, and over defective and insufficient rails not properly spiked to the cross-ties, over decayed, rotten, and defective cross-ties, and over a defective and insufficient road-bed,-by reason of all of which acts of carelessness and negligence on the part of said defendant, so done and committed, and without any fault * * * on the part of plaintiff, the train was thrown from the track, and she was injured. The complaint closed with the averments that, in consequence of said careless and negligent acts of appellant, its agents and employes, the plaintiff, without her fault, was injured, etc.
The complaint is not as specific and methodical as it ought to be, but we think it sufficient to withstand the demurrer directed against it; especially when we apply to it the rules of construction prescribed by the statute and established by our decisions. It is alleged specifically that the train was run over decayed and rotten ties; but the specific facts showing the insufficiency of the locomotive, in what regard the curve was not properly elevated, in what respect the rails were defective, and not properly spiked to the ties, and in what respect the road-bed was otherwise out of repair, are not stated. The general allegations as to these matters might have been reached by a motion to have the complaint made more specific, but the complaint is not necessarily bad, as against a demurrer, because the allegations are thus general. Cincinnati, H. & D. R. Co. v. Chester, 57 Ind. 297;Jones v. White, 90 Ind. 255;Cleveland, C., C. & I. Ry. Co. v. Wynant, 100 Ind. 160;Louisville, N. A. & C. Ry. Co. v. Krinning, 87 Ind. 351, 352;Boyce v. Fitzpatrick, 80 Ind. 526.
Whatever might be said of it, as an original proposition, under our later statutes it is settled, as a rule of pleading and practice in this state, in cases such as this, that it is sufficient, to withstand a demurrer for want of facts, to characterize an act as having been negligently or carelessly done, and that, under such an allegation, the facts constituting the negligence may be given in evidence. Cleveland, C., C. & I. Ry. Co. v. Wynant, supra;Jones v. White, supra;Louisville, N. A. & C. Ry. Co. v. Krinning, supra;Boyce v. Fitzpatrick, supra;Cincinnati, I., St. L. & C. Ry. Co. v. Gaines, 104 Ind. 526; S. C. 4 N. E. Rep. 34, and 5 N. E. Rep. 746; Wabash, St. L. & P. Ry. Co. v. Johnson, 96 Ind. 46.
As we have said, the complaint is not as specific and methodical as the rules of good pleading require; but looking to all the averments therein, and giving to them a fair construction, it may reasonably be said that negligence is charged with respect to the running of the train, the condition of the curve, ties, rails, etc. To sustain the charge of negligence made in the complaint, it was competent for appellant to prove, if she could, that the curve was not properly constructed, that the rails were defective, and not...
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