Pittsburgh, C., C. & St. L. Ry. Co. v. Fraze

• Decision Date: 24 May 1898
• Parties: PITTSBURGH, C., C. & ST. L. RY. CO. v. FRAZE.
• Court: Indiana Supreme Court

150 Ind. 576

50 N.E. 576

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

v.FRAZE.

Supreme Court of Indiana.

May 24, 1898.

Appeal from circuit court, Jackson county; S. B. Voyles, Judge.

Action by Henry Fraze against the Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company. Judgment for plaintiff, and defendant appeals. Reversed.S. Stansifer and Applewhite & Applewhite, for appellant. A. N. Munder, for appellee.

McCABE, J.

The appellee sued the appellant to recover damages resulting from a personal injury to appellee at a place where appellant's railway is crossed by a highway, caused, as is alleged, by the negligence of appellant. The issues were tried by a jury, resulting in a verdict for the plaintiff, upon which judgment was rendered, over appellant's motion for a new trial. The trial court overruled a demurrer to the complaint, and overruled appellant's motion to reject the complaint. Upon these several rulings alone error is assigned by appellant. The court, we think, properly overruled the motion to reject the complaint. The statute requires the court not only to reject, as sham, an answer, but any other pleading, “either when it plainly appears upon the face thereof to be false in fact, and intended merely for delay, or when shown to be so by answers of the party to special written interrogatories propounded to him to ascertain whether the pleading is false.” Section 385, Burns' Rev. St. 1894 (section 382, Rev. St. 1881; section 382, Horner's Rev. St. 1897). The appellant propounded interrogatories to appellee for that purpose, and they were answered by him. The object of such interrogatories and the answers of appellee thereto was to show that the allegation in the complaint that he was free from contributory negligence was false. The particular contributory negligence sought to be shown by the answers to the interrogatories was whether appellee looked both ways and listened attentively for a coming train of cars, and whether he saw the train in time to avoid, as he approached the crossing, injury thereby. Appellee's answers to the interrogatories specifically and directly state that he did so look and listen, and did not see the train in time to avoid the injury he suffered thereby. But appellant contends that the answers disclose a number of physical facts and surrounding circumstances sufficient to show that the answers to such interrogatories were false, either in stating that appellee did so look and listen, or, if he did so look and listen, that he did not see the train. Such a state of facts does not comply with the statute requiring the rejection of the pleading as sham for its falsity. It must plainly appear either upon its face or by answers to the interrogatories to be false. Here it does not plainly appear on the face of the complaint, nor does it so appear from answers, that the particular allegation mentioned is false. The trial court could only reach the conclusion that it was false by weighing and balancing the probabilities arising from certain inferences to be drawn from physical facts-the lay of the land, the railroad track and the highway, the presence or absence of obstructions to the sight of the coming train-stated in said answers to said interrogatories, tending to show that appellee might have seen the same as he approached the crossing. In other words, the court below was required to weigh and determine whether the physical facts and surrounding circumstances set forth in said answers were sufficient, as appellant contends they were, to overcome and destroy the appellee's positive statement that he did look both ways, and listened attentively as he approached the crossing, and failed to see or hear the train in time to avoid being struck thereby. In such a case the question of fact thus presented cannot be tried and determined on a motion to reject the pleading. Bliss, Code Pl. (3d Ed.) § 422, and authorities there cited. There was no error in overruling the motion to reject.

Only two points are urged under the motion for a new trial, namely, that the circuit court erroneously refused certain instructions, and that the evidence is not sufficient to establish appellee's freedom from contributory fault.

The substance of the seventeenth instruction asked by appellant, and refused by the court, is as follows: “If the evidence fails to satisfy your minds by a perponderance that the plaintiff, by diligently listening for trains, and diligently looking behind him or in the direction of the train, could not have seen or heard said train at any time or place as he approached the crossing, and before too near to it, then * * * I instruct you that the law demands that your verdict be for the defendant.” In view of the evidence in the case, this instruction was peculiarly applicable, and ought to have been given if it correctly expresses the law. It has been repeatedly affirmed by this court that, “when a person crossing a railroad track is injured by a collision with a train, the fault is prima facie his own, and he must show affirmatively that his fault or negligence did not contribute to the injury, before he is entitled to recover for such injury.” Hathaway v. Railway Co., 46 Ind. 25; Railroad Co. v. Butler, 103 Ind. 31, 2 N. E. 138;Mann v. Stock-Yards Co., 128 Ind. 138, 26 N. E. 819;Smith v. Railroad Co., 141...