Pittsburgh, C., C. & St. L. Ry. Co. v. Simons
| Decision Date | 09 January 1907 |
| Docket Number | No. 20,882.,20,882. |
| Citation | 168 Ind. 333,79 N.E. 911 |
| Parties | PITTSBURGH, C., C. & ST. L. RY. CO. v. SIMONS. |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Grant County; H. J. Paulus, Judge.
Action by Frank Simons against the Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company. From a judgment of the Appellate Court (76 N. E. 883) affirming a judgment for plaintiff, defendant appeals. Appealed from Appellate Court under third subdivision of section 1337j, Burns' Ann. St. 1901. Affirmed.
G. E. Ross, for appellant. Jno. T. Strange, J. F. Charles, and Dan Dille, for appellee.
Appellant appeals from a judgment rendered in favor of appellee for personal injuries alleged to have been caused by the negligence of the appellant. The complaint was in two paragraphs, but there is no controversy but that the verdict rests upon the first. This paragraph was assailed by a motion to make more specific, and by a demurrer for want of facts, each of which was overruled and forms the basis of an assignment. The substance of the complaint is: That appellant's railroad runs north and south through the corporate limits of Gas City, parallel with, and from 600 to 800 feet east of, the Mississinewa river. Main and South H streets, in said city, run parallel, east and west, and both cross defendant's railroad at right angles. These Streets and crossings are from a half to three-fourths of a mile apart, and between them are seven other parallel streets, running east and west, all of which, at the west end, abut upon the east line of defendant's right of way, but none of them crosses the railroad. South B street is the second street south of Main. The territory on both sides of the railroad is, and has been for some time, occupied by many residences and manufacturing establishments, in which latter places are, and have been for many years, employed a large number of men, women, and children, which appellant well knew. The company had a passing track, the south end of which connected with the main track about five feet north of South B street, extended, and about 600 feet south of Main street, and a switch track, known as the “American Window Glass Spur,” that connected with the passing track about 125 feet north of South B street, extended and ran thence south parallel with the main track, to a point south of South B street. Beginning about 500 feet south of Main street on the right of way, on the west side of the main track, a well-defined, much-used pathway began and extended southward along the west side of the railroad and within the right of way, for about one-half mile. There were three or more well-defined, much-traveled paths that led off from the first named and crossed the railroad to the east, one of which crossed the railroad right of way a few feet north of South B street, extended. In 1892 the company constructed a barbed-wire fence on the west line of its right of way, from a point 280 feet south of Main street, southward to South H street, a distance of more than one-half mile, and in constructing the fence the company erected gateposts on each side of said pathway running across the right of way at the west end of South B street, and it has ever since maintained said gateway open for travel along said pathway. No fence was maintained on the east line of the right of way, in the vicinity of South B street, and all of said pathways were open and accessible to the plaintiff and the public. That between said Main and South H streets there were no public crossings over the right of way. That portion of said city between said streets was at all times thickly populated, and for the residents therein to cross the right of way upon a public crossing it was necessary to go to Main street or to South H street, a distance of from one-half to three-fourths of a mile. That said gateway was constructed and maintained for the purpose of allowing the public to travel through the same and along said pathways, and on said 9th day of March, 1903, and for many years prior thereto, said pathways and gateway had been in open and continuous use by the public, for travel, and hundreds of men, women, and children passed over the same daily, going to and from their work, and going to and from defendant's depot on business. That such use occurred at all hours of the day, and that large numbers of children were constantly passing along said pathway along said tracks at the end of South B street. That the defendant and its employés had full and actual knowledge of such facts, and especially of the custom of the children in so using said pathways, but the defendant never made any objection to such use, and did not erect any notice warning the public of danger at said crossings, but acquiesced in, and consented to, such use all of the time. That the switch or side track located near the end of South B street was connected with the main track by a switching device, which switching device was knowingly and negligently maintained and operated by the defendant in a manner extremely dangerous to persons crossing said track or on said side track, and especially dangerous to children, in this: that the space between the throw rail of said switch and the west rail of said main track was not blocked, but left open in such a manner that persons crossing or upon said track would be liable to get their feet caught or fastened between said rails and be in great danger of being run over by the trains of the defendant, which are frequently being run over said track. That said switching device could have been blocked in such a manner as to have decreased or have entirely removed said danger and prevented the danger hereinafter complained of, but that it was maintained and operated in said dangerous condition with full knowledge on the part of this defendant. That in March, 1903, the plaintiff, being a boy eight years of age, of ordinary intelligence, and residing with his father on South B street, near the defendant's right of way, was sent by his parents on an errand to a house on the west side of the right of way. The plaintiff traveled westward on South B street, until he arrived at the defendant's right of way, and then entered upon said right of way, and traveled westwardly along said beaten path across said right of way and through said gateway. That the plaintiff soon afterward “returning from his errand, entered upon said right of way through said gateway on the west side and approached said first-named switch when a locomotive engine with cars attached was backing southward on said window glass spur. That while said engine was on the window glass spur the plaintiff attempted to cross the main track on said pathway, and, while attempting to cross, his foot became fastened between the west throw rail of said switching device and the west rail of the said main track, the same not being blocked as above averred, and that he was unable to loosen it, but was securely fastened to said track. That said engine and cars went north on the window glass spur at a slow rate of speed and passed within ten feet of the plaintiff and then backed southward on the passing track to enter the main track towards the point where the plaintiff was fastened. That plaintiff was in full view of the employés of the defendant and could have been seen by them after his foot became fastened. That the plaintiff began to scream and cry out loudly so as to attract the attention of persons in the vicinity, and he continued to cry out until he was run over. That such cries could have been heard by the defendant's employés when they were passing along the window glass spur, and when they approached him on the passing track. That during all of said time said plaintiff's body was moving up and down in his endeavors to release himself, in such a manner as to attract the attention of the defendant's employés had they been diligent in the performance of their duties. That said engine and cars might have been stopped within a space of 30 feet, but that the employés negligently and carelessly failed to keep watch of the track ahead or be at their post of duty, but with knowledge of the dangerous condition of said premises and of the custom of the children to pass over the same, ran said engine and cars toward the plaintiff, crushing both of his legs, which necessitated the amputation of the right below, and of the left above, the knee.
The defendant moved the court below to require the plaintiff to make his complaint more specific by stating in what respect “defendant knowingly and negligently operated said switching device *** and knowingly and negligently maintained said switching device,” and “its employés negligently and carelessly failed to keep a watch ahead,” and “negligently and carelessly failed to be at their post of duty.” 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 to fully and distinctly inform the defendant of what he is called upon to meet. Alleman v. Wheeler, 101 Ind. 141.
The first specification of negligence in the complaint is that the defendant knowingly and negligently maintained and operated at the place described a switching device that was extremely dangerous, particularly to children passing along or across the railroad track at that point, in this: that the space between the throw rail of said switch and the west rail of the main track was not blocked, but left open in such a manner that persons crossing the track at that point were liable to get their feet fastened therein. The second specification is that the engine and cars could have been stopped at any...
To continue reading
Request your trial