Pittsburgh, Cincinnati, Chicago And St. Louis Railway v. Ervington
Decision Date | 10 March 1915 |
Docket Number | 8,485 |
Citation | 108 N.E. 133,59 Ind.App. 371 |
Parties | THE PITTSBURGH, CINCINNATI, CHICAGO AND ST. LOUIS RAILWAY COMPANY v. ERVINGTON, ADMINISTRATRIX |
Court | Indiana Appellate Court |
Rehearing denied June 24, 1915.
From Cass Circuit Court; John S. Lairy, Judge.
Action by Daisy Ervington, Administratrix of the Estate of Walter Ervington, deceased, against The Pittsburgh, Cincinnati Chicago and St. Louis Railway Company. From a judgment for plaintiff, the defendant appeals.
Affirmed.
George E. Ross and John L. Rupe, for appellant.
Blacklidge Wolf & Barnes and McConnell, Jenkines, Jenkines & Stuart, for appellee.
Appellee brought this action for the negligent killing of her decedent at a public highway crossing near Kokomo, Indiana. The cause was tried on the first paragraph of the complaint. The trial was by jury and a verdict for appellee for $ 5,000 was returned. Over motion for new trial, judgment was rendered on the general verdict. The errors assigned bring in question the overruling of the demurrer to the complaint, and overruling the motion for new trial.
The complaint first avers facts to show the dangerous character of the crossing, and that it was a public crossing, with the allegations respecting the negligence of appellant: It is evident that the pleader has intended to charge three distinct acts of negligence, but we do not believe it is fair to say that although the complaint avers three separate acts of negligence, that it proceeds upon the theory that decedent's death was caused by a combination of all such negligent acts alleged. It is not improper to charge several distinct acts or grounds of negligence in the same paragraph of complaint, and a recovery on such complaint will be upheld if one or more grounds of negligence have been sufficiently proven, unless the grounds of negligence charged are so related one to the other as to show that the injury complained of was the result of two or more of the negligent acts charged, combined. Lake Erie, etc., R. Co. v. Beals (1912), 50 Ind.App. 450, 98 N.E. 453, and cases cited. This court in discussing a similar question said: "But in the case at bar the averments of negligence concerning the pool of slag might be omitted from the complaint and there would still remain a cause of action." Gould Steel Co. v. Richards (1903), 30 Ind.App. 348, 353, 66 N.E. 68. So in the case at bar all the averments of negligent acts might be omitted from the complaint save those relating to a failure to give the statutory signals, and that decedent's death resulted from such failure, and the complaint would be sufficient. Baltimore, etc., R. Co. v. Musgrave (1900), 24 Ind.App. 295, 297, 55 N.E. 496, and cases cited; Fort Wayne, etc., Traction Co. v. Crosbie (1907), 169 Ind. 281, 287, 81 N.E. 474, 13 L.R.A. (N. S.) 1214, 14 Ann. Cas. 117, and cases cited.
Appellant contends also that the complaint is bad without an averment that the decedent was in a position to have heard the signals if they had been given. Such averments are not necessary. Pittsburgh, etc., R. Co. v. Terrell (1912), 177 Ind. 447, 95 N.E. 1109, 42 L.R.A. (N. S.) 367. Neither are we satisfied that the complaint affirmatively shows decedent guilty of contributory negligence. The complaint avers that as decedent approached the crossing from the south the view of an approaching train from the east was obstructed until the horse which he was driving reached the main track, that within 100 feet of the crossing he stopped, looked and listened for an approaching train, and he continued so to look and listen until he came upon the main track, but could not see or hear a train approaching, that at all times he continuously looked and listened until he passed the obstruction and was in fact on the main track, and that the approaching train could not be seen until he reached that point. These averments with others contained in the pleading show decedent free from contributory negligence. There was no error in overruling the demurrer to the complaint. New York, etc., R. Co. v. Robbins (1906), 38 Ind.App. 172, 76 N.E. 804; Ohio, etc., R. Co. v. McDonald (1892), 5 Ind.App. 108, 31 N.E. 836; Evansville, etc., R. Co. v. Berndt (1909), 172 Ind. 697, 88 N.E. 612; Rosenthal v. Chicago, etc., R. Co. (1912), 255 Ill. 552, 99 N.E. 672.
Under the motion for a new trial it is argued that the verdict of the jury is not sustained by sufficient evidence. Under this assignment, in view of what we have said with reference to the sufficiency of the complaint, together with the position taken by both parties in their briefs and in the oral argument, the principal ground of negligence we need to consider further is that which charges negligence in failing...
To continue reading
Request your trial