Pittsburgh, Cincinnati, Chicago And St. Louis Railroad Company v. Rushton

• Decision Date: 09 June 1925
• Docket Number: 12,301
• Citation: 148 N.E. 337,90 Ind.App. 227
• Parties: PITTSBURGH, CINCINNATI, CHICAGO AND ST. LOUIS RAILROAD COMPANY v. RUSHTON
• Court: Indiana Appellate Court

148 N.E. 337

90 Ind.App. 227

PITTSBURGH, CINCINNATI, CHICAGO AND ST. LOUIS RAILROAD COMPANY v. RUSHTON

No. 12,301

Court of Appeals of Indiana

June 9, 1925

Rehearing denied November 6, 1925, Reported at: 90 Ind.App 227 at 242. Transfer denied November 13, 1929.

From Hendricks Circuit Court; Zimri E. Dougan, Judge.

Action by Cecil F. Rushton against the Pittsburgh, Cincinnati Chicago and St. Louis Railroad Company. From a judgment for plaintiff, the defendant appealed.

Affirmed.

McNutt, Wallace, Harris & Randel, for appellant.

Hume & Gaston and S. C. Kivett, for appellee.

OPINION

MCMAHAN, J.

Complaint by appellee, in one paragraph, to recover damages for personal injuries alleged to have been caused by the negligence of appellant in the operation of a train across a street in the town of Amo, in Hendricks county.

The allegations of the compliant, so far as is necessary to an understanding of the questions presented, are, in substance, as follows: Appellant's line of railroad through said town consists of a main track, and a switch parallel to, and about eight feet north of, the main track; the principal part of said town lies north of the railroad which crosses the street at right angles; for a number of years a row of buildings consisting of a large warehouse, a mill, elevator and other buildings in connection therewith, have been maintained immediately east of said street and north of the switch, and in such manner as to completely prevent travelers upon the street, when approaching the railroad crossing from the north, from seeing or hearing a train upon said tracks east of said street until such traveler has passed to the south of said buildings and upon said crossing; said street was, at all times, both day and night, a much-used thoroughfare, and was used generally by the public in all kinds of vehicles; on December 17, 1920, and for a long time prior thereto, defendant ran a number of trains over said crossing, and maintained a schedule for the operation of its trains, and daily operated a number of trains over said crossing at a speed of from 40 to 60 miles an hour; that defendant, with knowledge of said facts, "negligently failed to provide suitable and proper means of warning travelers using said main street of the approach of trains from the east"; sometime prior to December 17, 1920, defendant had installed near said crossing what is commonly known as an electric gong; that, with full knowledge of the obstructed condition of the approach to said tracks, defendant placed a box car upon said switch and east of said crossing in such manner as to further obstruct said view, and to render it impossible for a traveler upon said street approaching said crossing from the north to have any view of an approaching train, or otherwise discover the same, until after crossing said switch and being upon the main track of the railroad and in a place of great danger; on the night of December 17, 1920, at the time of the injury to plaintiff, defendant left said car upon the switch in the condition aforesaid; that, on said night, defendant operated a through passenger train from the east over said crossing at a high and dangerous rate of speed, and "did, on said occasion, with full knowledge of all the facts, negligently and carelessly operate said engine and train of cars upon and over said crossing at a high and dangerous rate of speed" of more than 40 miles per hour, "and did negligently and carelessly fail to give proper, timely and sufficient warnings of the approach of said train upon said crossing," and in such manner as to warn people using said street of the approach of its train, and did negligently and carelessly fail to sound the whistle and ring the bell, 'and did negligently and carelessly fail to sound the whistle and ring the bell at a time and place and in a manner sufficient, in view of the speed of the train and the obstructions to sight and sound, to give reasonable and timely warning" to people who were rightfully using said street and crossing, and, as a direct and proximate result of the acts of negligence alleged, struck an automobile in which plaintiff was riding, and did, by said alleged negligence, strike and hurl said automobile and the plaintiff from said track and permanently injure him, both physically and mentally. Then follows a specific description of plaintiff's injuries which it is alleged were the proximate result of the negligence of defendant as hereinbefore set forth. The complaint further alleged that, at the time appellee was so struck and injured, he was in exercise of due care, rightfully using said highway crossing, and traveling from the north to south upon said street in an automobile, as the invited guest of one Tudor, who was driving said automobile, and who had the sole control and management thereof.

Appellant filed a motion to require appellee to set out in separate paragraphs of complaint the several causes of action "attempted" to be stated in the several parts of the complaint hereinbefore quoted. This motion being overruled, it then filed a motion asking that the complaint be made more specific in the following particulars: (1) By stating where the buildings mentioned were situated with reference to the railroad tracks, and the distance of each from the street and from the main railroad track; (2) that the complaint state what particular "obstructed condition" appellant had knowledge of; (3) that it state where the box car was on the switch, and how far east of the street; (4) that it state in what manner and what parts of appellee's head, body, back, etc., were injured; (5) that it state the facts upon which the following conclusions were based: (a) That it was the duty of appellant to provide means of warning travelers on the street of the approach of trains; (b) that it was impossible for a traveler on said street approaching the crossing from the north to have a view of an approaching train or to discover it until he crossed the switch; (c) that appellant negligently operated its train of cars over the crossing; (d) that appellant negligently failed and neglected to sound whistle and ring bell; (e) that appellant negligently failed to sound whistle and ring bell at a time and place and in a manner sufficient to give reasonable warning; (f) that appellant negligently operated its engine and train over the crossing; and (g) that appellant struck the automobile as a proximate result of the acts of negligence charged.

It is the settled rule in this state that the overruling of a motion to separate is not reversible error. Talge Mahogany Co. v. New Albany Veneering Co. (1925), 84 Ind.App. 93, 147 N.E. 781, and authorities there cited; and in view of the recent decision of the Supreme Court construing § 343a Burns 1921, the appellant cannot under the condition of the record in this case predicate error upon the action of the court in overruling its motion to make more specific. See Terre Haute, etc., Traction Co. v. Phillips (1921), 191 Ind. 374, 132 N.E. 740. There was no reversible error in overruling either of said motions.

Appellant filed a demurrer for want of facts, with memorandum stating a number of reasons why the complaint was not sufficient. But, in that part of the brief devoted to the statement of the propositions, points and authorities, wherein appellant undertakes to state the specific reasons why the complaint is not sufficient and why it was error to overrule the demurrer thereto, after setting out the substance of the complaint, appellant states one, and only one, proposition why the overruling of the demurrer was error, said proposition being in the following language: "We assert that each of these allegations is a mere conclusion of the pleader; that at least some of them are necessary to the sufficiency of the pleading; that the facts upon which the conclusions are attempted to be based are not sufficient to support the conclusion; that a motion having been made to require the facts to be stated and overruled, the complaint stands on the same footing that it would have stood before the act in regard to pleading conclusions was passed, that is, a conclusion either of law or fact in a complaint adds no virtue to it; and that the demurrer, therefore, should have been sustained." In support of this proposition, appellant sets out and states certain points or reasons, the first of which is, that there is no statement in the complaint showing where the buildings were, other than that they were north and immediately east of the street, and that the allegation that they were maintained in such manner as to completely prevent travelers on the street, when approaching the crossing from the north, from seeing or hearing a train until such traveler had passed to the south of said buildings and upon said crossing, is a mere conclusion, and that no fact could be truthfully pleaded to sustain such conclusion. In this contention, appellant refers to the evidence, which it says shows that the mill was 19 feet and six inches north of the track; that no part of any building was less than 17 feet and eight inches from the main track; and that that particular building was 156.7 feet east of the street.

Since appellant has referred to the evidence, and since the matter comes to us after trial so that we may look to the evidence, not to determine whether there was any error in overruling the demurrer, but for the purpose of determining whether that ruling, even if erroneous, rises to the dignity of reversible error, we will, at this point, review the evidence.

The following plat shows the location of the crossing in question, the location of the traction railroad and the several buildings referred to in the complaint.

[SEE GRAPH IN ORIGINAL]

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