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

• Decision Date: 30 March 1899
• Citation: 152 Ind. 345,53 N.E. 290
• Court: Indiana Supreme Court
• Parties: PITTSBURG, C., C. & ST. L. RY. CO. v. MOORE.

152 Ind. 345

53 N.E. 290

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

v.MOORE.

Supreme Court of Indiana.

March 30, 1899.

Appeal from circuit court, Miami county; J. T. Cox, Judge.

Action by Anna B. Moore, as administratrix, against the Pittsburg, Cincinnati, Chicago & St. Louis Railway Company. From a judgment for plaintiff, defendant appeals. Reversed.N. O. Ross and G. E. Ross, for appellant. McConnell & Jenkins, Nelson & Myers, Chas. A. Cole, and M. N. Mahoney, for appellee.

HADLEY, J.

Appellee brought this action to recover damages for the death of her husband, alleged to have been caused by the negligence of appellant. The complaint is in three paragraphs, to each of which a demurrer was overruled. The answer was in three paragraphs, a demurrer to the second of which was sustained. The reply to the third paragraph of answer was in three paragraphs, and a demurrer to the third paragraph thereof was overruled. The cause thus at issue was tried by the jury, which returned a special verdict assessing the plaintiff's damages at $8,000. A judgment for $8,000 was rendered in favor of the appellee. The action of the court upon the demurrers, and in overruling appellant's motion for a new trial, for a venire de novo, for judgment on special verdict, in arrest of judgment, and to modify the judgment, is separately assigned as error.

The principal facts covered by the complaint are as follows: On the 5th day of July, 1893, plaintiff's decedent, Henry E. Moore, entered the employ of appellant, as night operator, at its yard office in the city of Logansport, where and in which capacity he continued until February 16, 1894, when he received injuries resulting in his death; that on the fatal night, while engaged in discharging the duties imposed by his said employment, about 8:45 p. m., he had received by wire, and under directions of appellant had delivered, an order to the conductor and engineer of freight train No. 77, while the same was running west through the yards at a rate of 4 or 5 miles an hour; and when decedent turned from delivering said message, to return to his post of duty, and while in the line of duty, and without fault or negligence on his part, one of appellant's locomotive engineers, in the employ of appellant and in charge of appellant's locomotive, drawing appellant's wreck train upon appellant's main track, so carelessly and negligently ran said locomotive and wreck train eastward through said yards, with the engine reversed, the tender in front, and so carelessly and negligently managed and operated said locomotive and train, without giving any warning, or displaying any light, or ringing a bell or sounding a whistle, and at a speed of 20 miles an hour, as to, and did, without warning and without notice to plaintiff's decedent, negligently run upon and over the body of plaintiff's decedent, causing his death. In the second paragraph it is further averred that Logansport is a city of 16,000 inhabitants, and at the time of the injury to plaintiff's decedent said city had ordinances in force requiring trains to be run through said city after sunset at a speed not exceeding 6 miles per hour, and that trains and locomotives being run backward, or with tender in front, should carry signal lights in front, and should be announced by ringing the bell and sounding the whistle, and that said engineer so in the employ of appellant, and so in charge of appellant's said locomotive and wreck train, negligently ran said locomotive and tender backward at a speed of 20 miles per hour, within the limits of said town, without ringing the bell or sounding the whistle, or displaying any signal light in front of said tender, in violation of said city ordinance. Appellee concedes that the complaint is grounded upon the first branch of the fourth clause of what is known as the “Co-employés' Liability Act” (section 7083, Burns' Rev. St. 1894), which reads as follows: “Where such injury was caused by the negligence of any person in the service of such corporation who has charge of any * * * locomotive engine or train upon a railway.”

Appellant's learned counsel first assail the complaint for failure to disclose in either paragraph some duty owing by appellant to the deceased that had not been performed, their contention being that all the perils pleaded were obvious and ordinary risks assumed by the deceased. When it clearly appears from the record that the judgment rests upon a good paragraph of complaint, the overruling of a demurrer to a bad paragraph is not available error on appeal. Therefore, without considering the sufficiency of the first paragraph of complaint, which is urged upon our attention, we pass to the second, which sets out the facts in greater detail, and to which the special verdict seems to have been especially directed.

Appellee insists that, if any fundamental fact is insufficiently alleged, we may read it into the complaint from the findings of the jury. This is not the law. When a pleading is tested by demurrer, it must stand or fall by its own averments. It can find neither weakness nor strength from other parts of the record. Insurance Co. v. Replogle, 114 Ind. 1-7, 15 N. E. 810;Cole v. Gray, 139 Ind. 396-399, 38 N. E. 856;Runner v. Scott, 150 Ind. 441, 50 N. E. 479. There is no longer any ground for contention over the rule that an employé assumes all the obvious and ordinary perils incident to his employment, and we find nothing in the statute relied upon by appellee to lessen the degree of diligence and responsibility required of the servant for his own protection.

Looking then to the facts pleaded in the second paragraph of complaint, for unperformed duty of appellant to the deceased, it is first insisted that it does not sufficiently show that the accident occurred within the corporate limits of the city of Logansport. It is averred that appellant maintained yards, and a telegraph office therein, “at” the city of Logansport; that the deceased was employed as operator in said telegraph office; that it was his duty to receive and deliver orders to train crews passing said office; and in passing from said office to deliver an order to train No. 77, westward bound on the main track, he was required to pass over a number of other tracks, etc., and was killed by the negligent act of the engineer, etc.; that the city of Logansport is an incorporated city of 16,000 inhabitants, and had in force on the fatal night an ordinance, etc. In criminal pleading, in laying the venue, an approved form is to charge that the crime was committed “at Cass county”; and the above averments, we think, sufficiently show that the place of injury was within the corporate limits of the city of Logansport.

While we apply the rule that a servant must look out for his own safety, and heed, at his peril, all open and ordinary dangers, we must also give force to the correlative rule, equally well established, that the servant himself, observing due care, has a right to believe, and to rely upon his belief, that the master has done his duty in the promotion of safety; and in this instance the deceased had a right to believe that appellant would obey the city ordinance which forbade the running of trains through the city at a greater rate of speed than six miles an hour, and that required all backing trains, or reversed engines with tenders in front, after night, to carry a light in front, and to sound the whistle and ring the bell. A disregard of the ordinance, under section 7083, supra, will extend to the engineer in the employ of appellant, and in charge and management of its locomotive and train; and if said ordinance was disobeyed by said engineer, as averred, the jury would have the right to impute such disobedience as negligence. Swindell v. State, 143 Ind. 153-168, 42 N. E. 528;Pennsylvania Co. v. Stegemeier, 118 Ind. 305, 20 N. E. 843. It will not do to say, as appellant contends, that the deceased, being in the service of the company, and familiar with the needs of the service, in running trains backward and forward through the yards, and sometimes at a great rate of speed, was not entitled to the protection afforded by the ordinance. The power of a city to pass such an ordinance is conferred as a police power for the protection of the public, and all the public; and because the deceased happened to be in the service of the company, within the inhibited territory, presents no reason for depriving him of its protection. Railway Co. v. Eggman (Ill. Sup.) 48 N. E. 981; Railroad Co. v. Gilbert, 157 Ill. 354, 41 N. E. 724;Bluedorn v. Railroad Co., 108 Mo. 439, 18 S. W. 1103. It follows, therefore, that the jury had the right to find, if the evidence warranted, that obedience to the city ordinances was a duty owing by appellant to the deceased, and its violation was not an assumed risk, but negligence of appellant.

The second paragraph of the complaint is good. The special verdict finds that Logansport is an incorporated city of 18,000 inhabitants; that the deceased was injured within the corporate limits of the city; that at the time of the accident the city had in force ordinances forbidding the running of trains through the city at a greater rate of speed than six miles an hour; that all engines running backward, with tender in front, after sunset, should display a bright light in front, and ring the bell continuously, while passing through the city; that these ordinances were being violated at the time of the injury. And in other respects the record affirmatively shows that the judgment rests upon the second paragraph of the complaint. We will, therefore, not consider the sufficiency of the first and third paragraphs of complaint.

The next question arises upon the sustaining of the demurrer to the second paragraph of the answer. This answer is pleaded to the whole complaint. It counts upon a contract of membership held by the deceased in an organization known as the “Voluntary Relief Department of the...