Ohio & M. Ry. Co. v. Smith

• Decision Date: 13 December 1892
• Parties: OHIO & M. RY. CO. v. SMITH.
• Court: Indiana Appellate Court

5 Ind.App. 560

32 N.E. 809

OHIO & M. RY. CO.

v.SMITH.

Appellate Court of Indiana.

Dec. 13, 1892.

Appeal from circuit court, Scott county; Thomas C. Batchellor, Judge.

Action by Della S. Smith against the Ohio & Mississippi Railway Company for personal injuries sustained while attempting to alight from a train. From a judgment in plaintiff's favor, defendant appeals. Affirmed.C. L. Jewett and Jos. S. Shea, for appellant. C. B. Harrod, for appellee.

Black, J.

The question as to the sufficiency of the appellee's complaint after verdict is presented under assignments that the complaint does not state facts sufficient to constitute a cause of action, and that the court erred in overruling the appellant's motion in arrest of judgment. The action was one for the recovery of damages for a personal injury sustained by the appellee while a passenger upon the appellant's freight train. The objection urged against the complaint is that it does not show that the appellee was free from negligence. In actions for negligence the complaint must contain an averment to the effect that the plaintiff was without fault or without negligence, or there must be a statement of facts which will indicate that the plaintiff did not contribute to the injury by his own fault. Railroad Co. v. Hendricks, 26 Ind. 228;Pennsylvania Co. v. Gallentine, 77 Ind. 322, 329, and cases cited; Town of Rushville v. Poe, 85 Ind. 83;Gheens v. Golden, 90 Ind. 427; Railway Co. v. Lockridge, 93 Ind. 191. When the sufficiency of a complaint is questioned, not by demurrer, but after verdict by motion in arrest, or by assignment of error in this court, all intendments, it has been frequently held, are taken in favor of the pleading; and, if it contains a statement of facts sufficient to bar another suit for the same cause of action, its defects, if any, are cured by the verdict, and it will be treated as sufficient to uphold the judgment. Colchen v. Ninde, 120 Ind. 88, 22 N. E. Rep. 94; Peters v. Banta, 120 Ind. 416, 22 N. E. Rep. 95. A complaint will not be held insufficient, on motion in arrest of judgment, if it be sufficient to bar another action for the same thing, and the necessary facts omitted be such as might be supplied by proof. Chapell v. Shuee, 117 Ind. 481, 20 N. E. Rep. 417; Railroad Co. v. Willis, 80 Ind. 225;Robinson v. Powers, 129 Ind. 480, 28 N. E. Rep. 1112; Railway Co. v. Harrinton, 92 Ind. 457. In Eberhart v. Reister, 96 Ind. 478, it was said: “When there is a material fact lacking, the pleading is not cured by the verdict, unless it states other facts from which, by liberal intendment, the omitted fact can be supplied. When there are no allegations touching the subject, then there are no grounds which will support an inference or which will supply reasons for an intendment that the omitted fact was proved. Our cases lay down the rule that, where an independent fact essential to the cause of action is omitted, the pleading will be bad on motion in arrest.” See, also, Railroad Co. v. Stanley, (Ind. App.) 30 N. E Rep. 1103. In each of the two cases last cited, as in the case at bar, the plaintiff's freedom from fault was an essential fact. In Eberhart v. Reister, supra, it was said: “If there were any facts at all bearing upon that subject, then a liberal intendment would be indulged. * * * There may be cases where, in stating the facts constituting the defendant's negligence, the plaintiff's freedom from fault is made to appear.” In Railroad Co. v. Rainbolt, 99 Ind. 551, a complaint which did not expressly aver that the plaintiff was without fault or negligence, but which, by its averments, showed that while he, being a passenger, was seated in the defendant's railroad coach, the coach by reason of the defendant's negligence, broke through a bridge, whereby he was injured, was held sufficient. It was said: “From the averments in the complaint in this case, it must be taken that the appellee was lawfully a passenger on the appellant's train of cars, presumably submitting to its rules and regulations as such. The giving way of the railroad bridge over which the train was passing precipitated him violently into the river below, inflicting upon him the injuries complained of, and it must be held from the situation in which the appellee was shown to have been, the relation which he occupied towards the railroad company, which relation placed him under no duty except to remain passive in its hands while being carried, that all presumption of negligence on his part is rebutted by the averments of the complaint.” In Mitchell v. Robinson, 80 Ind. 281, the complaint charged that the defendants owned and were operating certain steam engines and other machinery, in the prosecution of a certain business; that the plaintiff was in their employ in the vicinity of the boilers connected with said machinery; that while he was near the same, in the proper discharge of his duty, under his said employment, one of the boilers, without any fault of the plaintiff, and only by reason of the unsafeness, defectiveness, and insecurity thereof, exploded, whereby large quantities of steam and water escaped therefrom, and fell upon him, by reason of which he was greatly injured, etc. It being objected by counsel that the complaint did not sufficiently show that the plaintiff was injured without fault on his part, the court said: “He was lawfully and without fault at the place where he was injured; the explosion occurred without his fault; and from these facts, considered in connection with the other facts stated, it is certain to a common intent that he was free from any fault which contributed to his injury;” and the complaint was held sufficient on demurrer.

In the complaint before us it is not directly alleged that the appellee was without...