Ohio & M. Ry. Co. v. Walker

• Decision Date: 27 January 1888
• Court: Indiana Supreme Court
• Parties: Ohio & M. Ry. Co. v. Walker.

113 Ind. 196

15 N.E. 234

Ohio & M. Ry. Co.

v.Walker.

Supreme Court of Indiana.

January 27, 1888.

Appeal from circuit court, Jennings county; J. D. New, Judge.

Jason B. Brown, for appellant. John G. Berkshire, for appellee.

Elliott, J.

The first paragraph of the appellee's complaint alleges that the track of the appellant crosses Madison street, in the city of North Vernon, at a point where it intersects Main street, and runs along Main street from that point for a distance of 300 yards; that a hotel called the “Feadler House” stands on the north-east corner of the two streets; that on the eighth day of January, 1885, the appellee started to walk from the Feadler house, north-west across Main street, along and in Madison street; that at the time he started to cross the street, a locomotive and train of cars belonging to the appellant were upon the railroad track, some distance to the north-east; that, if moving at all, the locomotive and train were moving very slowly; that the employes of the appellant in charge of the train, suddenly, and without ringing the bell or sounding the whistle, and without giving any warning whatever, put the locomotive and train in rapid motion, and before the appellee could get across or away from the track, they ran the locomotive upon him; that, had the whistle been sounded or the bell rung, appellee could have crossed the track in perfect safety. The second paragraph differs from the first in this: it avers that the engineer had negligently left the locomotive in charge of the fireman. The third differs from the other two in this: it avers that the train was standing still when he attempted to cross. All of the paragraphs contain the general allegation that the plaintiff was without fault. Walker was not a wrong-doer in going upon the track laid along Main street. He was on a public crossing, and in a public highway; for, even had he not been on the Madison-street crossing, he would still have been on a public street, for Main street, although used by the railway company, was still a street open to the use of the citizens, so far as that use did not interfere with the rights of the railway company to operate its trains. In the case of Railway Co. v. Phillips, 112 Ind. ---, 13 N. E. Rep. 132, we examined this question, and, after reviewing many authorities, reached the conclusion that a person who walked upon a railroad track laid along a street is not a trespasser. Here the case is still stronger, because the plaintiff was on a public crossing, as well as on a public street. It is, therefore, very clear that the decision in Ivens v. Railway Co., 103 Ind. 27, 2 N. E. Rep. 134, has no application, for in that case the plaintiff was a trespasser, because he was on the company's track, and not on a street or on a highway crossing. We have no doubt that the appellant's counsel are right in asserting that if the complaint does not show that the plaintiff was not guilty of contributory negligence it is bad. Railroad Co. v. Butler, 103 Ind. 31, 2 N. E. Rep. 138; Railway Co. v. Phillips, supra;Palmer v. Railroad Co., 14 N. E. Rep. 70, (this term.) We have again and again affirmed that the complaint must affirmatively show that the defendant was negligent, and that the plaintiff was not. But, while we agree with counsel that the plaintiff must show these facts, we cannot assent to their assertion that the complaint does not show that the plaintiff was free from fault. The complaint avers in direct terms that the appellee was without fault, and this averment makes the pleading good. It has long been the rule in this court that the general averment that the plaintiff was without fault is sufficient, unless the facts specially pleaded clearly show that he was guilty of contributory negligence. De Witt v. City, 47 Ind. 391;Town v. Goller, 76 Ind. 291;Rogers v. Overton, 87 Ind. 410;City v. Small, 86 Ind. 462;Town v. Poe, 85 Ind. 83;Murphy v. City, 83 Ind. 76;Pittsburg, etc., Co. v. Wright, 80 Ind. 182;Board v. Legg, 93 Ind. 523. The rule that the general averment is sufficient has been so long established, and so often approved, that we should feel bound to adhere to it, even if we doubted its soundness; but we think its soundness can be vindicated on principle. It is in the nature of a negative fact, and an averment of such a fact cannot be made with the same particularity as an affirmative one. The elementary books, recognizing this, agree that in such cases a general averment is ordinarily sufficient. It is evident that any other rule would be practically incapable of enforcement; for a negative fact can seldom be alleged, except generally and by way of denial, since any other course would require a process of exclusion and elimination that would lead to an almost endless pleading. If the specific facts absolving the plaintiff from fault must be pleaded, then it would be necessary to enumerate every fact that might be considered as tending to charge him with fault, and negative its existence. In some cases this process of enumeration and exclusion would be practically impossible; in others it would lead to a prolixity of pleading that would do no good, but would produce uncertainty and confusion.

In the case before us it is expressly alleged that the injury was caused solely by the defendant's negligence, and without any fault on the part of the plaintiff; and the force of these general averments is not broken by the specific facts pleaded. It is probably true that there is not that certainty of statement in the allegations of the complaint which charge the defendant with negligence that the strict rules of pleading require, but, granting this to be true, it will not avail the appellant, since the remedy for mere uncertainty of statement is by motion, and not by demurrer. It has been long and firmly establishedin this state that negligence may be charged in general terms, and that if the defendant desires a more definite statement of the facts, he must move the court to make the complaint more specific. Railroad Co. v. Nelson, 51 Ind. 150;Kessler v. Leeds, 51 Ind. 212;Railway Co. v. Collain, 73 Ind. 261;City v. Worthington, 97 Ind. 282;Columbus, etc., Co. v. Wynant, 100 Ind. 160;Railway Co. v. Gaines, 104 Ind. 526, 4 N. E. Rep. 34, 5 N. E. Rep. 746; Railroad Co. v. Jones, 108 Ind. 551, 9 N. E. Rep. 476. This rule is not without support in principle, and it is well sustained by the decisions of other courts. A recent writer thus states the rule: “A general averment of negligence in a complaint, declaration, or petition is sufficient; the particular acts constituting the negligence need not be, in detail, specifically set out.” Black, Pr. & Pl. 201. Many decisions are cited in support of the doctrine. Objections to evidence to be of any avail must be reasonably specific. The particular objection must be fairly stated. It is not enough to state that the evidence is incompetent, or that it is immaterial and irrelevant. This much is implied in the bare fact of objecting. If it be unnecessary to state the particular objection, quite as well say “we object,” and done with it, since a more general objection amounts to nothing more, for it is simply tantamount to an expression of the fact that counsel do object. It is no answer to the proposition asserted by the authorities to say that the evidence itself may reveal the objection, for this may be said of all incompetent and irrelevant evidence, when carefully scrutinized; and, if this be true, then there would be no reason for requiring a specific objection in any case. But there is reason for requiring the particular objections to be stated with reasonable certainty; for in the hurry of a trial it cannot be expected that particular objections will occur to the judge, although, if stated, he would readily perceive their force. Counsel who are presumed to have studied the case ought to be able to state the particular objections, and if none are stated it is fair to assume that none exist, since an objection that cannot be particularly stated is not worth the making. The rule is a reasonable one, just to the court, and not burdensome to the parties; and it has been accepted as the law, at least since 1846. Branham v. Russell, 8 Blackf. 277;Stanley v. Sutherland, 54 Ind. 339;Shafer v. Fergason, 103 Ind. 90, 2 N. E. Rep. 302, and cases cited; Railway Co. v. Falvey, 104 Ind. 409, 3 N. E. Rep. 389, 4 N. E. Rep. 908; McKinsey v. McKee, 109 Ind. 209, 9 N. E. Rep. 771, and cases cited. Possibly there may be cases where a general objection should be deemed effectual; as, for instance, where it appears upon the face of a written instrument that it cannot under any...