Pennsylvania Railroad Co. v. Hemmer

• Decision Date: 27 June 1933
• Docket Number: 25,614
• Citation: 186 N.E. 285,206 Ind. 311
• Parties: Pennsylvania Railroad Company v. Hemmer, Administratrix
• Court: Indiana Supreme Court

186 N.E. 285

206 Ind. 311

Pennsylvania Railroad Company v. Hemmer, Administratrix

No. 25,614

Supreme Court of Indiana

June 27, 1933

Rehearing Denied March 8, 1934.

From Jackson Circuit Court; James A. Cox, Judge.

Action by Grace M. Hemmer, administratrix of the estate of Charles A. Hemmer, deceased, against The Pennsylvania Railroad Company to recover damages for the alleged wrongful death of plaintiff's accident. From a judgment for plaintiff defendant appealed. (Transferred from the Appellate Court).

Affirmed.

John Rynerson, Anderson, Mayfield & Rynerson, Loyd C. Byer, Donald P Shinn, Edward P. Elsner, and Wendell Rynerson, for appellant.

Montgomery & Montgomery, for appellee.

OPINION

Treanor, J.

This action was brought by the plaintiff as administratrix of the estate of Charles A. Hemmer, deceased, against the defendant, The Pennsylvania Railroad Company, to recover damages for the alleged wrongful death of Charles A. Hemmer.

The complaint alleged, in substance, that the defendant maintained and used a side track parallel with and a few feet east of the main line of defendant's railroad which ran along Indianapolis Avenue and crossed Tipton Street in the City of Seymour; that by an ordinance of the City of Seymour it was made unlawful to operate any locomotive, car or cars within said city at a speed in excess of eight miles per hour; that on the day named plaintiff's deceased was on "Tipton street east of defendant's tracks, on foot and desiring to travel westward over said crossing, but the same was obstructed by a long freight train moving northward on the main track, and he walked to a point in said street near said moving train and about the middle of defendant's side track and while waiting at said point for said freight train to pass and clear said crossing, defendant carelessly and negligently ran a locomotive northward upon and along said side track and against, upon and over said Charles A. Hemmer and thereby so injured him and that he then and there died of such injuries." The defendant's negligence was specifically alleged to consist of (a) running the locomotive at a speed greater than 8 miles per hour, to wit: 12 miles per hour; (b) running the locomotive over the Tipton Street crossing without having sounded the whistle as it approached the crossing; (c) failure to ring the bell on the locomotive; (d) failure of the engineer on the locomotive to keep a look out for persons and vehicles using and intending to use the crossing and not seeing plaintiff's decedent before striking him; and (e) running the locomotive along the side track when it "could not be heard because of the noise from said freight train or so closely following said freight train as needlessly to endanger life and property on said crossing."

The trial court overruled appellant's motion to make the complaint more specific and appellant's demurrer to the complaint, and issue was joined by appellant's answer in general denial. Trial by jury resulted in a verdict for appellee. Appellant's motion for new trial was overruled and judgment was rendered upon the verdict. Appellant assigns as error the overruling of its motion to make more specific, its demurrer, and its motion for a new trial.

We think the trial court committed no error in overruling appellant's motion to make more specific. We agree with appellant's proposition that "the defendant was entitled to have the complaint state the specific acts or omissions of the defendant which constitute the negligence relied upon," but we think the complaint sufficiently alleged specific acts and omissions on the part of the defendant which constituted negligence.

"It has often been held by this Court that a general charge of negligence is sufficient as against a demurrer, but if a defendant desires a more specific charge he is entitled to it upon motion, if made in due season. But the rule has its limitations. A plaintiff is required to charge his cause of action in direct and certain terms yet he is not required to go into an elaboration of details beyond what is reasonably necessary fully and distinctly to inform the defendant of what he is called upon to meet." Pittsburgh, etc., Ry. Co. v. Simons (1907), 168 Ind. 333, 79 N.E. 911.

"Appellant was entitled to have 'a statement of the facts constituting the cause of action, in plain and concise language, without repetition, and in such manner as to enable a person of common understanding to know what is intended.' § 343 Burns 1914. . . . But this rule does not require more than is reasonably necessary to fully and distinctly inform the defendant of what he is called upon to meet." Haskell and Barker Car Co. v. Trzop (1920), 190 Ind. 35, 128 N.E. 401.

In support of its contention that the trial court erred in overruling appellant's demurrer to the complaint appellant says that "it affirmatively appears from the averments of the complaint that decedent was guilty of contributory negligence which was the proximate cause of his injury and death." No such affirmative showing appears in the complaint. The complaint alleges that the decedent walked to a point in the street near said moving train and about the middle of defendant's side track and that while waiting there for the freight train to pass and clear the crossing the defendant carelessly and negligently ran a locomotive on said track and against the decedent, and the facts are alleged concerning the operation of the locomotive which would constitute such carelessness and negligence. It can not be said, as a matter of law, that the act of decedent in waiting at the crossing, in the middle of defendant's side track, for the freight train to pass, as alleged, considered in connection with the allegedly negligent operation of defendant's locomotive upon the side track, constituted contributory negligence which was the proximate cause of the injury and death. Cleveland, etc., Ry. Co. v. Miles (1904), 162 Ind. 646, 651, 70 N.E. 985; Chicago, etc., R. Co. v. Boggs, (1885), 101 Ind. 522. No error was committed in overruling appellant's demurrer.

Under its third assignment of error, the overruling of the motion for new trial, appellant presents in Points and Authorities the court's action in giving instructions 1, 4, 5, 6, 8, and 10 at appellee's request, the refusal to give instruction No. 20 tendered by appellant, the exclusion of appellant's exhibit No. 1 from evidence, and that the verdict is not sustained by sufficient evidence and is contrary to law.

Appellee contends that no question as to instructions is presented on appeal because the trial court gave three instructions of its own motion which instructions were not signed by the judge; because the trial court did not "indicate before instructing the jury, by a memorandum in writing, at the close of the instructions" requested by appellee "the numbers of those (to be) given and of those (to be) refused," as is provided in § 586, Burns Ann. Ind. St. 1926 (Acts 1903, p. 338, § 2-2010, Burns 1933, § 343, Baldwin's 1934); and further because the instructions are not in the record in that they "are not incorporated in or set out in the order purporting to make them a part of the record."

An examination of the record shows a complete absence of a written memorandum at the close of appellee's requested instructions indicating the numbers of the instructions to be given or to be refused. Nor is there a written memorandum, signed by the judge, on the margin or at the close of each of appellee's instructions indicating whether the several instructions were refused or given. Further, the record does not show that the instructions given by the court on its own motion were signed. Also, as pointed out by appellee, "the instructions are not incorporated in or set out in the order purporting to make them a part of the record," which is the approved method of making the instructions a part of the record. An appellant may bring up instructions by a special bill of exceptions or as a part of the record which "may be included in the transcript on appeal." If he chooses to bring them up as a part of the record they must be made a part of the record; and this can be done only by substantial compliance with the provisions of the statute. In Morgan Construction Co. v. Dulin (1915), 184 Ind. 652, 109 N.E. 960, there was no written memorandum indorsed upon the instructions of appellee and this court held that the instructions were not in the record. The pertinent statements of the opinion in that case are as follows:

"It further appears, however, that certain other instructions were tendered by appellee with a request that each of them be given to the jury and with a further request that the court indicate by a memorandum in writing which of such instructions would be given and which would be refused. From the original record in this cause it does not appear that a memorandum of any kind was endorsed by the trial judge on the instructions so tendered by appellee and there is nothing in the record to suggest that he did in fact comply with the requirement of the statute in that regard. As we have already determined the presence in the record of a memorandum which is in other respects sufficient will give rise to the presumption that it was prepared at the proper time and such presumption will prevail unless affirmatively rebutted. It is equally true

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