Pittsburg, C., C. & St. L. Ry. Co. v. Ervington

• Citation: 108 N.E. 133,59 Ind.App. 371
• Decision Date: 10 March 1915
• Docket Number: No. 8485.,8485.
• Court: Court of Appeals of Indiana
• Parties: PITTSBURG, C., C. & ST. L. RY. CO. v. ERVINGTON.

59 Ind.App. 371

108 N.E. 133

PITTSBURG, C., C. & ST. L. RY. CO.

v.ERVINGTON.

No. 8485.

Appellate Court of Indiana. Division No. 2.

March 10, 1915.

Appeal from Circuit Court, Cass County; John S. Lairy, Judge.

Action by Daisy Ervington, administratrix, against the Pittsburg, Cincinnati, Chicago & St. Louis Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.John L. Rupe, of Richmond, George E. Ross, of Logansport, and Walter G. Butler, of Richmond, for appellant. McConnell, Jenkines, Jenkines & Stuart, of Logansport, and Blacklidge, Wolf & Barnes, of Kokomo, for appellee.

IBACH, J.

Appellee brought this action for the negligent killing of her decedent at a public highway crossing near Kokomo, Ind. The cause was tried on the first paragraph of the complaint. The trial was by jury, and a verdict for appellee for $5,000 was returned. Over motion for new trial, judgment was rendered on the general verdict. The errors assigned bring in question the overruling of the demurrer to the complaint, and overruling the motion for new trial.

The complaint first avers facts to show the dangerous character of the crossing, and that it was a public crossing, with the allegations respecting the negligence of appellant:

“That the defendant's servants and employés negligently and carelessly failed and neglected to ring the bell or blow the whistle on the locomotive of said train, as required by law, upon approaching said Plate street, at the places required by law for signals to be given, to wit, not less than 80 nor more than 100 rods east and southeast of said crossing. That the defendant's said servants and employés upon said train, at the time, well knew that the view of any traveler coming from the south, approaching said crossing, was obstructed by the cars setting on said side track, and that it would be impossible for any traveler to see the approach of a train until he had passed the said line of cars and was upon the main track, so that he could not see any train approaching from the east until he had roached that point. That, notwithstanding the said knowledge upon the part of the said servants and employés, they negligently and carelessly failed and neglected to give any warning of the approach of said train as it approached said Plate street, and did not blow the whistle or ring the bell or give any other signal of the approach of said train at any point to the east, although they well knew that the said view was obstructed, as aforesaid. That the said servants and employés knew at that time that the said crossing was a public crossing and was used by the public in passing back and forth, and that it was a place where were many dwelling houses, and a large number of the public were passing and repassing. Notwithstanding these facts and this knowledge on the part of the said employés, they negligently and carelessly failed and neglected to give any signal whatever of the approach of said train, and carelessly and negligently ran said locomotive and cars at a high and dangerous rate of speed, to wit, 50 miles per hour, toward, upon, and over said Plate street. That the plaintiff's decedent could not hear the approach of the train as he approached in his buggy, and no signal was given warning him of the approach of said train. That he cautiously and carefully drove his horse upon the said crossing, and the said train, from the east, came into collision with his said buggy and threw him a long distance to the northwest, along the side of the track, and killed the said plaintiff's decedent. That the death of the said plaintiff's decedent was caused by the said negligence and carelessness of the defendant, its servants and employés, as above alleged. That the defendant's negligence and carelessness in failing to sound a whistle, or give any other signal, not less than 80 nor more than 100 rods east of the said crossing, or to give any other signal, after that time, upon the approach of said train to said crossing, in time to warn the plaintiff's decedent, and also the negligence and carelessness of the defendant in allowing its cars to stand on the said side track, as above alleged, that they so obscured the view and made it impossible for plaintiff's decedent to see the train approaching, and the negligence and carelessness of the defendant's servants in running the said train at said high and dangerous speed upon and against the plaintiff's decedent, was the direct and proximate cause of the death of said plaintiff's decedent. That the defendant's employés and servants did negligently and carelessly run and operate the said train to and against the plaintiff's decedent, as above alleged, and thereby caused his death, solely and wholly by reason of the aforesaid negligent and careless acts of the defendant's employés and servants.”

[1][2] It is evident that the pleader has intended to charge three distinct acts of negligence, but we do not believe it is fair to say that, although the complaint avers three separate acts of negligence, it proceeds upon the theory that decedent's death was caused by a combination of all such negligent acts alleged. It is not improper to charge several distinct acts or grounds of negligence in the same paragraph of complaint, and a recovery on such complaint will be upheld if one or more grounds of negligence have been sufficiently proven, unless the grounds of negligence charged are so related one to the other as to show that the injury complained of was the result of two or more of the negligent acts charged combined. Lake Erie, etc., R. Co. v. Beals, 50 Ind. App. 450, 98 N. E. 453, 454, and cases cited.

This court, in discussing a similar question, said:

“But in the case at bar the averments of negligence concerning the pool of slag might be omitted from the complaint, and there would still remain a cause of action.” Gould Steel Co. v. Richards, 30 Ind. App. 348, 353, 66 N. E. 68, 70.

So in the case at bar all the averments of negligent acts might be omitted from the complaint, save those relating to a failure to give the statutory signals, and that decedent's death resulted from such failure, and the complaint would be sufficient. Baltimore, etc., R. Co. v. Musgrave, 24 Ind. App. 295, 297, 55 N. E. 496, and cases there cited; Ft. Wayne, etc., Tr. Co. v. Crosbie, 169 Ind. 281, 287, 81 N. E. 474, 13 L. R. A. (N. S.) 1214, 14 Ann. Cas. 117, and cases cited.

[3] Appellant contends also that the complaint is bad without an averment that the decedent was in a position to have heard the signals if they had been given. Such averments are not necessary. Pittsburg, etc., R. Co. v. Terrell, 177 Ind. 447, 95 N. E. 1109, 1113, 42 L. R. A. (N. S.) 367.

[4] Neither are we satisfied that the complaint affirmatively shows decedent guilty of contributory negligence. The complaint avers that, as decedent approached the crossing from the south, the view of an approaching train from the east was obstructed until the horse which he was driving reached the main track; that within 100 feet of the crossing he stopped, looked, and listened for an approaching train, and he continued so to do until he came upon the main track, but could not see or hear a train approaching; that at all times he continuously looked and listened until he passed the obstruction and was in fact on the main track; and that the approaching train could not be seen until he reached that point. These averments, with others contained in the pleading, show decedent free from contributory negligence. There was no error in overruling the demurrer to the complaint. New York, etc., R. Co. v. Robbins, 38 Ind. App. 172, 76 N. E. 804;Ohio, etc., R. Co. v. McDaneld, 5 Ind. App. 108, 31 N. E. 836;Evansville, etc., R. Co....