Ohio & M. Ry. Co. v. Hill
| Decision Date | 22 June 1893 |
| Citation | 7 Ind.App. 255,34 N.E. 646 |
| Court | Indiana Appellate Court |
| Parties | OHIO & M. RY. CO. v. HILL. |
OPINION TEXT STARTS HERE
Appeal from circuit court, Clark county; C. P. Ferguson, Judge.
Action by Matilda Hill, administratrix of the estate of David Hill, deceased, against the Ohio & Mississippi Railway Company, to recover for the death of decedent. Plaintiff had judgment, and defendant appeals. Affirmed.
For report on former appeal, see 18 N. E. Rep. 461.
J. K. Marsh, Ramsey, Maxwell & Ramsey, and Edward Barton, for appellant. F. B. Burke, for appellee.
On the first trial, appellee recovered verdict and judgment for $3,000. There was an appeal to supreme court. Railway Co. v. Hill, 117 Ind. 56, 18 N. E. Rep. 461. On return of the case to the lower court the pleadings were amended and issues reformed, and a second trial resulted in a verdict and judgment in favor of appellee for $3,500.
The errors assigned are: “(1) The court erred in overruling the demurrer to the first paragraph of the complaint; (2) the court erred in overruling the demurrer to the second paragraph of the complaint; (3) the court erred in overruling the demurrer to the third paragraph of the complaint; (4) the court erred in overruling the motion to require the third paragraph of the complaint to be made more specific; (5) the court erred in overruling the motion for a new trial.”
The 1st, 2d, 3d, and 4th errors assigned may be considered together. The contention of counsel for appellant is that no facts showing the negligence complained of are pleaded, and that it is not alleged in what manner causing the locomotive to pass rapidly over the side track and switch, and failing to give the signals, caused the injury to the deceased. As to those objections it is sufficient to say that an examination of the complaint discloses that negligence on the part of appellant is charged in general terms as the proximate cause of the injury, and the facts in relation thereto are so fully pleaded as to constitute a good cause of action.
It is further urged, in substance, that the facts which are relied on to show that the decedent exercised proper care should be specially pleaded, and that the general averment that he was not in fault is not sufficient. It has often been decided that the general averment, in such cases, that the injury was caused without any fault whatever on the part of the deceased, is sufficient, unless it clearly appears from the facts pleaded in the complaint that the person injured was guilty of contributory negligence. Each paragraph of the complaint is sufficient to withstand the demurrer. There was no error in overruling the motion to make the third paragraph more specific.
It is next insisted that the verdict of the jury is not sustained by sufficient evidence. The evidence tends to prove that the Ohio & Mississippi Railway, running north and south, and the Jeffersonville, Madison & Indianapolis Railway, running east and west, cross at right angles in the city of Jeffersonville. The two railways, at the time of the injuries which constitute the basis of this action, were connected by a double-tracked Y about 1,100 feet in length, extending from the west side of the O. & M. to the south side of the J., M. & I. The tracks of the Y crossed Illinois avenue, a public street, which runs north and south, diagonally, upon a grade above the surface of the balance of the street. The tracks of the Y were so separated that persons might ordinarily walk between them, but this could not be done at the point where the accident occurred when trains were on both tracks. It had been customary for years for the J., M. & I. to bring freight cars over from Louisville on its main track, and throw them in upon the Y, to be taken up by the O. & M., and removed to its main track, and placed in its trains. This was done by means of a switch engine passing back and forth over the Y, but its duties did not require it to go as far west as Illinois avenue, unless it was for the purpose of protecting the crossing. When the cars were thus being brought over by the J., M. & I., and thrown in upon the Y tracks, its passenger trains could not go out over the main track. Illinois avenue was crossed by the Y tracks within about 25 feet of Hill's house, and between his house and Ninth street, which was within 90 feet of Hill's house. That the Ninth street depot is about 500 feet east from the intersection of Ninth street with Illinois avenue. That on the evening in question a switch engine was standing on the south track of the Y, heading west from the avenue, and with its east end about 5 feet west of the west line of the avenue, and that it had been standing there about 50 minutes before Hill was injured; and that a passenger train was standing on the north track of the Y, empty, waiting an opportunity to back over on the bridge to Louisville. That the rear end of said train was resting on Illinois avenue, and extending from the east side of said avenue to within about 10 feet of the west side of the same. This train was about 250 feet long, and was headed around towards Broadway, with the curve of the switch in a southeast direction, and had been standing in that position about one hour. About 800 feet of the Y extended south east of Illinois avenue. Such were the positions of the passenger train and switch engine when Hill reached his house in the evening, and when he left it immediately before his collision with the switch engine on the 1st of September, 1885. After having had his supper, he left his house, about 7 o'clock in the evening, for the purpose of going to the Ninth street depot, and passed through his front gate, turning north up the avenue towards the Y tracks. It was then about dark, but the switch engine and the passenger train could readily be seen from his house. Hill for a long time had known of the custom and methods of the company at that point, and was thoroughly familiar with the situation. When Hill approached the Y on his journey, and as he reached the top of the fill at the track, the evidence tends to prove that he looked towards the switch engine, and saw it standing in the same position in which it was when he went home to supper. He then stepped on the track, directing his attention towards the passenger train, and proceeded, with the apparent intention of crossing the Y on the avenue, in the space in the rear of the passenger train, which was not obstructed. Just about this time the J., M. & I. threw a freight car in upon the Y track nearest to his house, and, in order to avoid a collision, there being a down grade towards the avenue, the switch engine was suddenly and rapidly started and moved, without signal or warning, there being no light thereon, across Illinois avenue. On account of the down grade, the momentum of the cars was sufficient to carry them to a point about 100 feet east of Illinois avenue, where it was the custom to hitch on to them with the engine. About the time the engine was started on this occasion Hill seems to have observed it was moving, and on account of the fact that the passenger train was at this point in the...
To continue reading
Request your trial