Pennsylvania Co. v. Dean
Citation | 92 Ind. 459 |
Decision Date | 05 January 1884 |
Docket Number | 10,755 |
Parties | Pennsylvania Company v. Dean, by his Next Friend |
Court | Supreme Court of Indiana |
From the Clark Circuit Court.
Judgment reversed, at appellee's costs, with instructions to sustain the motion to make the complaint more specific as to the points referred to in this opinion, and for further proceedings.
S Stansifer and W. D. Stansifer, for appellant.
J. G Howard, --- Whitaker and --- Parsons, for appellee.
The appellee, being a minor, brought this action by his prochein ami against the appellant and the Jeffersonville, Madison and Indianapolis Railroad Company, to recover damages for an injury received upon the defendants' railroad. The defendants severed in their defences. The case was tried by a jury, resulting in a verdict and judgment in favor of the Jeffersonville, Madison and Indianapolis Railroad Company, but against the appellant.
The appellant, at the proper time, moved that the appellee's complaint be made more specific. This motion was overruled. It then demurred unsuccessfully to the complaint. Its motion for a new trial was also overruled. To these rulings proper exceptions were taken, and the assignment of errors calls their correctness in question in this court.
The complaint was as follows:
etc.
The defendants, in their motion to have the complaint made more specific, asked that the appellee be required to show by proper averment of facts by what right he was upon the train at the time of receiving the injury; and also that he be required to make the averments of negligence upon the part of the defendants' agents and servants more specific.
The averment of the complaint simply shows that the appellee was on the appellant's train when he was ordered and commanded to jump off. Whether he was there as a passenger, an employee or a trespasser does not appear. We think the appellant was entitled to have the appellee allege in his complaint in what capacity he was upon the train. The rights and liabilities of the appellant could not intelligently be adjudicated without the knowledge and consideration of the fact thus sought to be developed. If the appellee was upon the train as a passenger, having paid, tendered, or been in readiness to pay his fare, then the appellant was charged with a very high duty and responsibility to carry him safely, and to protect him from the wrongful and negligent acts of all its employees, whereby his security might have been endangered; and in such case, if from a failure to discharge this duty, the appellee received an injury, the appellant would be liable for damages therefor. Chicago, etc., R. R. Co. v. Flexman, 103 Ill. 546 (42 Am. R. 33); Gillenwater v. Madison, etc., R. R. Co., 5 Ind. 339; Jeffersonville R. R. Co. v. Hendricks, 26 Ind. 228; Evansville, etc., R. R. Co. v. Duncan, 28 Ind. 441; Jeffersonville, etc., R. R. Co. v. Riley, 39 Ind. 568; Columbus, etc., R. W. Co. v. Powell, 40 Ind. 37; Ohio, etc., R. W. Co. v. Selby, 47 Ind. 471 (17 Am. R. 719); Jeffersonville, etc., R. R. Co. v. Parmalee, 51 Ind. 42; Cleveland, etc., R. R. Co. v. Newell, 75 Ind. 542; Terre Haute, etc., R. R. Co. v. Jackson, 81 Ind. 19.
If however, the appellee was on the train as an employee, the appellant would not be liable for an injury resulting from an act of a co-employee unless it was shown that such co-employee was incompetent or unfit for the employment in which he was engaged, and that the appellant was guilty of negligence in engaging or retaining him in...
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