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

• Decision Date: 01 July 1909
• Docket Number: No. 6,406.,6,406.
• Citation: 44 Ind.App. 635,88 N.E. 1080
• Court: Indiana Appellate Court
• Parties: PITTSBURG, C., C. & ST. L. RY. CO. v. REED.

44 Ind.App. 635

88 N.E. 1080

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

v.REED.

No. 6,406.¹

Appellate Court of Indiana, Division No. 1.

July 1, 1909.

Appeal from Circuit Court, White County; James P. Mason, Judge.

Action by William J. Reed, administrator against the Pittsburg, Cincinnati, Chicago & St. Louis Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.G. E. Ross, for appellant. John W. Talott, for appellee.

MYERS, J.

This was an action brought by the appellee as administrator of the estate of John Reed, deceased, to recover damages for the death of appellee's intestate, caused by the alleged negligence of the appellant. This cause is here for the second time. Pittsburgh, etc., R. Co. v. Reed, 36 Ind. App. 67, 75 N. E. 50. Upon the return of the cause to the Jasper circuit court the venue was changed to the court below, in which the appellee filed an amended complaint in three paragraphs. A demurrer to each of which, for want of facts, was overruled.

In substance, the first paragraph alleged that the appellant owned and operated a railroad and railroad tracks in, through, and across Ohio street in the town of Remington. That there is a sidewalk on that street, across which the tracks are laid. That the outer rails of two of the tracks are, and during all the times mentioned have been, so laid in said walk as to leave a dangerous opening between the same, which was calculated and likely to catch and hold the foot and footwear of any person passing over the sidewalk and tracks. That the appellant negligently laid and maintained said tracks as aforesaid, and negligently failed to place any block or other thing between said tracks, but on the contrary, caused and permitted said walk and tracks to be negligently, and unsafely laid and maintained as aforesaid. That it was during all of said time appellant's duty to keep and maintain said street in a safe condition for travel. On January 21, 1903, John Reed walked along and upon said tracks, and in so doing his foot became caught and held in said opening, negligently, as aforesaid, left open between said rails. That he never could or was able to extricate himself or his foot from said opening. That while he was so held and caught, the appellant learned and became aware of all the facts aforesaid, and, knowing the same, did negligently, at an unlawful high rate of speed, and without any warning or ringing any bell or sounding any whistle, ran a locomotive engine and a number of railroad cars and train along and on and over said tracks against, upon, and over said John Reed, then and there and thereby injuring him in such manner and extent that his death was thereby caused. That he left surviving him as his sole and only heirs at law certain named children, and Nora, May, and Ellen Casey, his grandchildren, all of whom, by and because of his death, have been damaged in the sum of $10,000. The appointment of appellee as administrator was alleged.

The second paragraph was like the first, except that it omitted to characterize the laying and maintaining of said tracks by appellant as being negligently done, and the failure to place any block or other thing between said tracks as negligently omitted, or that it was appellant's duty to keep and maintain said street in a safe condition for travel, and instead of the direct allegation of knowledge of the conditions along said street maintained by appellant, it was alleged that appellant could, by the exercise of reasonable diligence, and could, by the exercise of reasonable care, have learned and become aware of all the facts above stated, the complaint fully describing the condition of the street and the sidewalk, and the opening between the tracks alleged to be dangerous as so maintained by appellant. It was alleged, also in the second paragraph, that appellant, near said street, cut several cars loose, and shunted them negligently without any engine or caboose attached, without any person on either end of said train, and without any person or thing to control said car, along said track and across said street and on and over said John Reed, etc.

The third paragraph contained all the allegations of the other two, except, that it did not allege that the defendant learned, or might by reasonable care have learned, of decedent's perilous situation before injuring him.

If it might be said, as contended by appellant, that neither paragraph shows that the decedent's foot was caught and held by reason of any stated negligence of the appellant, yet each paragraph sufficiently shows that the decedent was at a point where he had a right to go upon a public sidewalk of said town, and was there caught and held, by his foot becoming fastened in an opening between the rails of the appellant's track there situated, and by appellant negligently left open, and that while he was in this situation appellant negligently ran its cars upon and against him, whereby he was killed. In actions at common law, based upon negligence, the complaint should characterize the act or omission of the defendant, relied on as the basis of the action, as having been negligently done, or negligently omitted to be done. But there is another rule of pleading, well recognized in this jurisdiction, under which facts directly alleged,conclusively showing that specific acts of commission or omission on the part of the defendant was the proximate cause of the injury sustained by the complaining party, actionable negligence is shown. Louisville, etc., Ry. Co. v. Hicks, 11 Ind. App. 588, 37 N. E. 43, 39 N. E. 767;Pennsylvania Co. v. Marion, 104 Ind. 239, 3 N. E. 874;La Porte Carriage Co. v. Sullender, 165 Ind. 290, 299, 75 N. E. 277. Each of these paragraphs is sufficient on demurrer. The theory upon which we hold these paragraphs good, as well as the theory upon which the issues were tried, will become apparent from our discussion of the instructions given to the jury.

Appellant's motion for a new trial was overruled, and this ruling is assigned as error. Counsel have invited our attention to a great many instructions given by the court to the jury, and to the action of the court in refusing to give quite a number of instructions tendered on behalf of appellant. The brief of appellant contains an elaborate argument directed to a number of instructions given, and in an attempt to show that those tendered and refused should have been given. From a careful consideration of all of the instructions covered by the argument of counsel we deem it entirely unnecessary to take the space to record our views on any except those pertaining to the facts here enumerated as preliminary to a discussion of certain instructions given by the court to the jury, as well as certain ones refused.

The intestate was about 70 years of age at the time of his death, and was not engaged in any business. His wife died in 1897. He left surviving him four sons and three granddaughters, the latter children of a daughter. The father of the three grandchildren had been dead about 12 years, and their mother died 4 or 5 years before the accident. The youngest of the sons is the administrator and the appellee herein. The oldest son was between 40 and 45 years old. The next son was 37, and the next 35 years of age. All of these sons were married, then in business, supporting themselves, and in no way dependent upon their father for support. The intestate had been living for about 2 years in a house of his own in Remington, and was receiving the income from a farm of 280 acres, from which he had removed to town. In 240 acres of this farm he had a life estate, having conveyed the fee in 160 acres thereof to his said four sons and the fee in 80 acres to said three grandchildren, retaining, in each instance, a life estate in himself. The granddaughters were all minors. They had lived with the decedent as a part of his family for about 12 years. At the time of his death, and for some years prior thereto, they kept house for him. He furnished the provisions for the household and the clothes for the three girls, and sent them to school, and two of them received some instruction in music. The decedent, at the time of his death, was receiving $700 a year in cash as rent for said farm, and had the house in town where he resided rent free. It was not sought upon the trial to prove any loss of pecuniary benefit to the four surviving sons or eight of them. The court, upon request of the appellant, instructed the jury that under the undisputed evidence before them, if they should find a verdict for the plaintiff, there could be no damages assessed by them for the benefit of the decedent's four surviving sons, because there was no evidence that they have sustained any pecuniary loss by reason of their father's death. Another instruction asked by the appellant, to the effect that under the evidence and the issues, if the jury should find for the plaintiff, they could not assess any damages for the benefit of the three grandchildren, naming them, was refused.

The statute under which this action was maintained (section 285, Burns' Ann. St. 1908), gives a right of action to the personal representative for death caused by wrongful act or omission, provided that the damages “must inure to the exclusive benefit of the widow or widower as the case may be,...