McClelland v. Louisville, New Albany and Chicago Railway Co.

• Decision Date: 27 March 1884
• Docket Number: 10,817
• Parties: McClelland, Administrator, v. The Louisville, New Albany and Chicago Railway Company
• Court: Indiana Supreme Court

94 Ind. 276

McClelland, Administrator, v. The Louisville, New Albany and Chicago Railway Company

No. 10,817

Supreme Court of Indiana

March 27, 1884

From the Monroe Circuit Court.

M. F Dunn and G. G. Dunn, for appellant.

G. W Friedley and E. D. Pearson, for appellee.

OPINION

Franklin C.

This is a suit by appellant, as administrator of the estate of Isaac Brimmer, against appellee for the death of said Brimmer.

The complaint consists of seven paragraphs. A demurrer was sustained to the fourth and overruled as to the others. Issues were formed in the Lawrence Circuit Court, when the venue was changed to the Monroe Circuit Court, where a trial was had by jury, and a verdict was returned in favor of the defendant. A motion for a new trial was overruled and judgment rendered upon the verdict.

The errors assigned are the sustaining of the demurrer to the fourth paragraph of the complaint, the overruling of the motion for a new trial, and the overruling of appellant's motion to dismiss his cause of action.

It is unnecessary to copy the lengthy fourth paragraph of the complaint in this opinion. There could be no available error in sustaining the demurrer to it, for the reason that all the material facts that could have been proved under it were provable under the other paragraphs of the complaint, to which the demurrer was overruled; and appellant could not be injured by the sustaining of the demurrer to that paragraph.

The facts in this case, as shown by the record, are as follows: The deceased got on a passenger train on defendant's road at Campbellsburg and paid his fare to Mitchell. When the train arrived at Mitchell, it stopped, and the usual announcement of the station was made, but the deceased did not get off. In a short time it moved on with the deceased in his seat; when it had gone a short distance, a mile or over, the conductor of the train discovered that he was yet upon the train and went to him and discovered that he was drunk and in a stupefied condition; he aroused him up and asked him where he wanted to go, to which deceased made no reply; he then told him what the fare was to the next station if he wanted to go any further, to which the deceased still made no reply, but only laughed at the conductor, not appearing to comprehend the situation.

The conductor stopped the train and he and the brakeman led the deceased off of the train and set him down on the grass some feet to one side of the road, and left him there sitting up. In a short time afterwards a freight train on the defendant's road, which the passenger train had passed at Mitchell while standing on the side-track, came along following the passenger train. The deceased, in the meantime, had got upon the track of the road and was lying down on it. When he was discovered by the engineer of the freight train, in that condition, distinct enough to distinguish that the object was some person, he then blew the whistle, and those in charge of the freight train endeavored to stop it, but it was too late, the train ran upon the deceased and killed him.

The motion for a new trial contains nine reasons. The first three are in relation to the sufficiency of the evidence. All the others are in relation to the instructions, except the ninth, which is for overruling the motion to dismiss.

Appellant in his brief makes no special point upon the sufficiency of the evidence otherwise than as mixed up with his discussion of the general tenor of the instructions. And he makes this general proposition, covering the theory of the instructions asked by him and refused to be given, in contradistinction to those given by the court: That the conductor and managers of the passenger train, at the time they left the deceased by the side of the road, well knew his helpless condition that their knowledge of his condition was notice of that fact to the defendant, as a corporation, and all its employees; hence the employees in charge of the freight...