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

• Decision Date: 04 June 1909
• Docket Number: No. 6,330.,6,330.
• Citation: 88 N.E. 702
• Court: Indiana Appellate Court
• Parties: PITTSBURGH, C., C. & ST. L. RY. CO. v. SUDHOFF.

88 N.E. 702

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

v.SUDHOFF.

No. 6,330.¹

Appellate Court of Indiana, Division No. 2.

June 4, 1909.

Appeal from Circuit Court, Wayne County; Henry C. Fox, Judge.

Action by Jeannette Sudhoff against the Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.John L. Rupe, for appellant. Shiveley & Shiveley, for appellee.

RABB, J.

The appellee's intestate was a lomocotive engineer in charge of a locomotive on appellant's road, and was killed in an accident on the 28th day of January, 1905. This suit was brought in the court below by appellee to recover damages for his death, which it is charged was caused by the negligence of the appellant. The appellee's complaint was in two paragraphs. A demurrer to the second paragraph was overruled. Appellant filed a special answer to each paragraph of the complaint, to which a reply was filed. The issues thus presented were submitted to a jury for trial, a general verdict returned in favor of the appellee, assessing her damages at $5,000, and, together with the general verdict, the jury returned answers to interrogatories submitted to them. Appellant's motion for judgment in its favor upon the answers to the interrogatories was overruled, as was also its motion for a new trial. The errors assigned here and urged for reversal are the action of the court in overruling appellant's demurrer to the second paragraph of the complaint, and overruling its motion for a new trial.

The sufficiency of the first paragraph of appellee's complaint is not questioned.

Interrogatory No. 27, submitted to the jury, was as follows: “If, in this case, you find for the plaintiff, state in answer to this interrogatory whether you so find upon the first or second paragraph of the complaint or both? Ans. Both.” By the answer to this interrogatory, we think the question arising upon the ruling of the court upon appellant's demurrer to the second paragraph of the complaint is eliminated from the case. It is well settled that, if it affirmatively appears from the record that the verdict of the jury is based upon a sufficient paragraph of the complaint, errors of the trial court in overruling a demurrer to an insufficient paragraph will not be ground for a reversal. Robinson v. Dickey, 143 Ind. 205, 42 N. E. 679, 52 Am. St. Rep. 417;Marvin et al. v. Sager, 145 Ind. 261, 44 N. E. 310;Conner v. Andrews, etc., Co., 162 Ind. 338, 70 N. E. 376;Taylor et al. v. Wootan, 1 Ind. App. 188, 27 N. E. 502, 50 Am. St. Rep. 200;Knight, Adm'r, v. Knight, 6 Ind. App. 268, 33 N. E. 456;Steeley et al. v. Seward et al., 34 Ind. App. 398, 73 N. E. 139. The answer of the jury to this interrogatory we think must be construed to mean that the jury find for the plaintiff on the first paragraph of her complaint, and also upon the second paragraph of her complaint. It was in legal effect precisely the same as though the jury said in their general verdict: “We find for the plaintiff on the first paragraph of her complaint, and we find for the plaintiff on the second paragraph of her complaint.” It thus affirmatively appearing from the answer to this interrogatory that the jury found in favor of appellee upon the first paragraph of her complaint, the sufficiency of which, as above stated, is not questioned, the fact that they also found in her favor on the second paragraph in no wise affects the efficacy of the verdict favorable to her upon the first paragraph.

Where there are several paragraphs of a complaint, some of which are sufficient and others insufficient, and a general verdict is returned in favor of the plaintiff, and from the record presented on appeal to this court the court is unable to say that the verdict and judgment rest upon some sufficient paragraph of the complaint, and not upon an insufficient paragraph, then the error of the court in overruling a demurrer to such paragraph necessarily constitutes reversible error. But where it is shown, as it is here, that the jury find the issues presented by a sufficient paragraph of complaint in favor of the plaintiff, no error of the court in overruling a demurrer to an insufficient paragraph will affect the validity of the judgment. This position seems really to be conceded by appellant's learned counsel in argument, and we quite agree with him that the “material and controlling question in the case” upon which the liability of the appellant must be determined is whether or not the negligence of appellant's engineer, imputable to appellant, and relied upon in the first paragraph of the complaint as the basis of appellee's action, was the proximate cause of the injury that resulted in her intestate's death. The facts upon which the determination of this question hinge affirmatively appear in the record either by the answers returned by the jury to interrogatories submitted to them which settle conflicts in the evidence or by facts which appear by the undisputed evidence. It thus appears from the evidence without dispute that appellee's intestate was a locomotive engineer; that he was engaged in appellant's service as such engineer in charge of one of its engines; that he was killed while engaged in the performance of the duties of his employment, and while at his proper place on his engine; that at the time of the accident resulting in his death his engine was standing on a side track on appellant's road at its Sulphur Springs Station; that the accident happened in the nighttime; that immediately preceding the accident, and before the engine upon which the decedent was in charge ran onto the sidetrack, it was engaged in connection with another engine in drawing appellant's freight train No. 81 from the station at Richmond westward; that, when the train reached a point about two miles east of the side track in question, by a mutual understanding between those in charge of the trains, the engine operated by appellee's intestate and which was the front engine of the two drawing the train was detached from the train, and ran ahead of the train to the side track, and entered the side track by the east switch, it being understood by all those connected with the train that the engine would take said side track and permit the train to pass, and then return to Richmond; that the crew of the engine and tender of which the decedent was in charge consisted of the decedent himself, a fireman, and a brakeman, and that, after it became detached from the freight train, the brakeman and fireman were subject to the orders of the decedent; that, on arriving at the switch in question, the decedent ordered the brakeman to open the switch and let the engine pass in, and then to close it, that the brakeman opened said switch, and the engine was run by the decedent 200 or 300 feet in on the switch, a sufficient distance to give clearance to the coming freight train; that the said brakeman, after opening the switch and letting the engine pass in on the side track, neglected to close the same; that at the time of the accident, and for a long time previous thereto, it was the universal custom of the appellant to maintain switch lights upon all the switches on their road in the nightime, and that these switchlights were so provided and arranged that they indicated to those in charge of locomotives running over the road whether or not the switch was open or closed; that a rule of the company required engineers in approaching a switch in the nighttime, where no light appeared upon the switch, to treat the absence of such light as a signal to stop, unless the engineer received a proper signal by a hand lantern to come on with his train.

It further appeared that on the night in question, for some unknown reason, at the time of the accident and at the time the decedent's engine came to said switch, there was no light upon the switch. It further appeared that the engineer in charge of appellant's engine drawing freight train No. 81 knew and understood the rule of the company referred to, and knew that the absence of a light upon the switch was a signal requiring him to stop his train, and that he knew and understood that the light was out on the switch when he was a sufficient distance from the switch to have stopped his train before reaching the same, and it appears, too, that he knew that the decedent had gone into the switch and was on the side track with his engine, yet with the knowledge of these facts, and in violation of the rules of the company requiring him to stop his engine, he came down upon the switch with a heavy freight train behind him, and at such rate of speed that he was unable, after discovering the switch was open, to stop his train until he had collided with the engine in charge of the decedent, and by the collision caused the injury from which the intestate died.

There was a conflict in the evidence as to whether the engineer of the freight train was given a signal to come on after the decedent's engine passed onto the side track and before the collision. The engineer and other witnesses testified positively that such signal was so given, and the engineer assigns this fact as the reason why he failed to obey the signal and stop his train. This testimony is disputed by the brakeman who was with the intestate's engine, and who testifies just as positively that no signal was given to the engineer in charge of the freight train to come on with his engine, and the determination by the jury in this conflict settles that question of fact, and we are bound to accept the fact as they have determined it. It is clearly shown by the evidence that he knew the intestate's engine was upon the side track. He could see the lights of the lanterns used by the men on the engine, and he knew that it was dangerous for him to come on with his train without a signal from those connected with the engine that had gone upon the side track so to do. It also appears from the evidence that the side...