New York, C. & St. L. R. Co. v. Mercantile Nat. Bank of Hammond

• Decision Date: 14 March 1960
• Docket Number: No. 19086,No. 1,19086,1
• Citation: 130 Ind.App. 638,165 N.E.2d 382
• Parties: NEW YORK, CHICAGO AND ST. LOUIS RAILROAD COMPANY, a Corporation, Appellant, v. MERCANTILE NATIONAL BANK OF HAMMOND, as Administrator of the Estate of Mary Marie Black, Deceased, Appellee
• Court: Indiana Appellate Court

Page 382

165 N.E.2d 382

130 Ind.App. 638

NEW YORK, CHICAGO AND ST. LOUIS RAILROAD COMPANY, a Corporation, Appellant, v. MERCANTILE NATIONAL BANK OF HAMMOND, as Administrator of the

Estate of Mary Marie Black, Deceased, Appellee.

No. 19086.

Appellate Court of Indiana, Division No. 1.

March 14, 1960.

Rehearing Denied April 21, 1960.

Batton, Harker & Rauch, Marion, Sammons & Sammons, Kentland, Harker, Irwin, Campbell & Harker, Frankfort, Clay Marsteller, Cleveland, Ohio, of counsel, for appellant.

Rudolph Tanasijevich, Julius H. Sachs, Saul I. Ruman, Hammond, J. Edward Barce, John Barce, Kentland, for appellee.

COOPER, Judge.

This action was commenced by the filing of a complaint by the plaintiff below, appellee herein, against the defendant below, appellant herein. The case was filed in the Lake Circuit Court and later venued to Newton Circuit Court where the trial was had.

The complaint alleges in substance that on or about the 7th day of September, 1952, plaintiff's decedent, Mary Marie Black, deceased, was riding in an automobile driven by her husband, James Black, in a northerly direction on Calhoun Street in Black Oak, Gary, Indiana, where said public highway intersects the railroad of the appellant; that the locomotive of the appellant was carelessly and negligently operated; that said locomotive, while being so operated, ran into and upon the automobile in which decedent was riding, causing serious injuries to decedent and from which injuries decedent died on September 7, 1952; that said decedent left surviving her her husband, James Black.

The pertinent allegations of the complaint charging negligence read as follows:

'4. That notwithstanding its duty in the premises, the defendant through its agents and servants in charge thereof, negligently and carelessly disregarded its duty in one or more of the following respects:

'(a) Defendant negligently and carelessly failed to cause the whistle of its locomotive engine to be blown not less than three times beginning, not less than 80 rods from the said crossing.

'(b) Defendant negligently and carelessly failed to cause the engine bell on its locomotive to be rung continuously beginning not less than 80 rods from said crossing.

'(c) Defendant negligently and carelessly operated and propelled said locomotive engine and caboose at an unreasonable and excessive rate of speed.

'(d) Defendant negligently and carelessly failed to give any signal, notice or warning of the approach of said locomotive engine.

'5. That the defendant further negligently and carelessly disregarded its duty in the premises in one or more of the following particulars:

'(a) Defendant, having knowledge of the fact that persons residing in the neighborhood of said crossing dumped and set fire to large amounts of waste and refuse on defendant's right of way at and near said crossing, negligently and carelessly suffered and permitted said refuse and waste to burn in such a manner that great quantities of smoke therefrom drifted across said crossing and obscured the view of approaching trains by travellers on said public highway, including the driver of the automobile in which the said Mary Marie Black was a passenger.

'(b) Defendant negligently and carelessly allowed an excessive and unreasonable amount of trees, bushes, and other vegetation to grow on its right of way near said crossing so that it obscured the view of its approaching trains by travellers on said public highway, including the driver of the automobile in which the said Mary Marie Black was a passenger.'

The appellant filed a motion to strike out clauses (a) and (b) of rhetorical paragraph 5, which motion was overruled. Afterwards, appellant filed a demurrer to clauses (a) and (b) of rhetorical paragraph 5 for the reason that said purported causes of action did not state facts sufficient to constitute a cause of action; the demurrer was overruled.

Subsequently, the appellant filed an answer in two paragraphs, the first denied the material allegations in the complaint, and the second paragraph alleged that the 'negligence of James Black proximately contributed to cause the collision referred to in the complaint'.

Trial by jury and the jury returned a verdict for plaintiff, appellee herein, in the sum of Six Thousand, Five Hundred ($6,500) Dollars, and the court thereafter entered judgment upon said verdict.

Appellant filed a motion for new trial which was overruled, and this appeal was perfected.

The assignment of errors as set forth by the appellant read as follows:

'1. The court erred in overruling defendant's motion to strike out parts of the complaint.

'2. The court erred in overruling defendant's demurrer to the complaint.

'3. The court erred in overruling defendant's motion for a directed verdict filed at the close of all the evidence.

'4. The court erred in overruling defendant's motion for a new trial.'

The first assignment of error is that the court erred in overruling defendant's motion to strike out parts of the complaint. The general rule of law applicable to motions to strike out parts of a complaint is: 'It is settled that where averments or matter in a pleading are in any way material, they ought not to be struck out on motion, and the recognized test of their materiality is to inquire whether they tend to constitute a cause of action or defense; if they do, they are not irrelevant and ought not to be suppressed.' Chambers v. Pennsylvania R. Co., 1950, 120 Ind.App. 342, 345, 92 N.E.2d 559, 560; Atkinson v. Wabash Railroad Company, 1895, 143 Ind. 501, 41 N.E. 947, and cases therein cited. Therefore, the trial court did not commit error in overruling the appellant's motion to strike in this cause.

The second assignment of error relied upon is the court's ruling on the appellant's demurrer to clauses (a) and (b) of rhetorical paragraph number five. The demurrer reads as follows:

'The defendant demurs separately and severally to the purported causes of action in the complaint based upon clauses (a) and (b) of rhetorical paragraph 5, and each of said purported causes of action, for the reason that neither of said purported causes of action state facts sufficient to constitute a cause of action for the reasons set out in the memorandum hereto attached.'

Sec. 2-1012, Burns', 1946 replacement, reads as follows:

'The defendant may demur to one or more of the several causes of action alleged in the complaint, and answer as to the residue.'

It is the general rule of law that where a complaint alleges separate acts of negligence, the sufficiency of a particular act of negligence can be singled out and a partial demurrer addressed thereto, Pennsylvania R. Co. v. Sherron, 1952, 230 Ind. 610, 614, 105 N.E.2d 334, and the overruling of which could in a proper case constitute reversible error. See Gavit Indiana Pleading and Practice, Vol. I, § 133, p. 645; 1 Lowe's Revision of Works' Indiana Practice, § 14.26.

The pertinent question presented by the appellant's demurrer in the trial court was whether the facts alleged show actionable negligence. Actionable negligence consists of a legal duty owing, the failure to perform that duty, and injury resulting therefrom. Harris v. Indiana General Service Co., 1934, 206 Ind. 351, 356, 189 N.E. 410; Pittsburgh, C., C. & St. L. R. Co. v. Foust, 1912, 53 Ind.App. 90, 99 N.E. 493; Indiana & C. Coal Co. v. Neal, 1906, 166 Ind. 458, 460, 77 N.E. 850; Faris v. Hoberg et al., 1892, 134 Ind. 269, 274, 33 N.E. 1028.

In determining the correctness of the trial court's ruling on a demurrer, 'we are governed by the rule that for the purpose of the demurrer, allegations of the complaint will be construed most strongly in favor of the pleadings, as the demurrer admits facts not only directly and specifically alleged in the complaint, but also all facts that can be implied from allegations by reasonable and fair intendment'. Ebbeskotte v. Tyler, 1957, 127 Ind.App. 433, 439, 142 N.E.2d 905, 908; Lincoln Operating Co. v. Gillis, 1953, 232 Ind. 551, 114 N.E.2d 873; Dipert, Admx., etc. v. Killingbeck, et al., etc., 1953 (T.D.1953) 124 Ind.App. 18, 112 N.E.2d 306, 885.

The appellant claims that his demurrer to the aforesaid clauses (a) and (b) of rhetorical paragraph five should have been sustained by the trial court. The argument in his brief on this contention is a statement of reference to legal decisions and principles of law, with which we feel justified in agreeing, but nowhere in the argument does the appellant apply such legal principles and holdings of the court to the particular allegations of said clauses (a) and (b) of rhetorical paragraph five of the appellee's complaint.

Under our Supreme Court rules, it is incumbent upon the appellant to do more than merely state principles of law and give quotations from cited authorities. The proposals made should be considered and applied to the particular facts at hand so that this court may know definitely and precisely why the appellant considers said allegations to be insufficient in statement of fact.

The appellant does not take up each, or either of these particular charges of negligence and show, by particular reference thereto, wherein the allegations as made fail to charge a duty, as appellant contends. Unless the appellant gives such consideration to the allegations of negligence and sets them forth in its argument portion of his brief, we have no way of knowing exactly in what respect appellant thinks that such allegations fail to state a duty on the part of the appellant, and we would be placed in the position of having to guess or surmise as to exactly what particular proposition of fact the appellant may have in mind relative to the asserted failure of said charges in said complaint to state a cause of action--namely, a duty on the part of the appellant.

It follows, therefore, that the appellant has failed to establish by its brief any error of the court in the overruling of the demurrer to said clauses (a) and (...