Pittsburgh, Cincinnati, Chicago & St. Louis Railway Co. v. Collins
| Decision Date | 01 July 1904 |
| Docket Number | 20,215 |
| Parties | Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company v. Collins |
| Court | Indiana Supreme Court |
Rehearing Denied December 6, 1904.
From Cass Circuit Court; John S. Lairy, Judge.
Action by Thomas Collins against the Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company for damages for personal injuries. From a judgment on a verdict for $ 11,880, the defendant appeals.
Reversed.
G. E Ross, for appellant.
S. T McConnell, B. C. Jenkines, A. G. Jenkines and C. H. Stuart, for the appellee.
Appellee brought this action to recover damages for personal injuries received while in the service of appellant as a freight conductor, caused, as he alleged, by reason of the negligence of the engineer in charge of the engine drawing a train of which appellee was the conductor; the action being based upon the fourth subdivision of § 7083 Burns 1901, being section one of what is known as the employers' liability act (Acts 1893, p. 294). Appellant's demurrer for want of facts to each paragraph of the complaint was overruled. A trial of said cause resulted in a verdict in favor of appellee, and, over a motion for a new trial, judgment was rendered against appellant.
The errors assigned and not waived call in question the action of the court in overruling the demurrer to each of the paragraphs of the complaint, the motion to make the second paragraph of the complaint more specific, and the motion for a new trial.
It is insisted by appellant that as it is not alleged in each paragraph of the complaint that appellee was, at the time of the injury complained of, "in the exercise of due care and diligence," as required by the fourth subdivision of § 7083, supra, said paragraphs were therefore insufficient, and that the court erred in overruling appellant's demurrer thereto; that the act of February 17, 1899 (Acts 1899, p. 58, § 359a Burns 1901), did not change or modify the rule on this subject declared in Indianapolis Union R. Co. v. Houlihan (1901), 157 Ind. 494, 498, 499, 60 N.E. 943, 54 L.R.A. 787, and cases cited. What this court said in Pittsburgh, etc., R. Co. v. Lightheiser (1904), ante, 247, disposes of this objection to the complaint, for in that case it was held that such allegations were not necessary to the sufficiency of a complaint under the fourth subdivision of § 7083, supra, since the taking effect of said act of 1899, supra. It is proper to say, however, that said act of 1899 did not repeal or modify that part of said fourth subdivision which provides, "the employe so injured being in the exercise of due care and diligence." It only changed the rule of pleading and proof then in force, so that thereafter such fact need not be alleged or proved by the injured employe, but the same constituted a defense, and, when shown to exist in a case by the complaint or the evidence, whether introduced by the plaintiff or the defendant, or by both, no recovery can be had. Said provision of said fourth subdivision is as much a part thereof today as it was before said act of 1899 took effect. Pittsburgh, etc., R. Co. v. Lightheiser, supra. It has been held by the court that the expression, "the employe injured being free from contributory negligence," is the equivalent of said provision of said fourth subdivision of § 7083, supra. Indianapolis, etc., R. Co. v. Houlihan, supra; Pittsburgh, etc., R. Co. v. Lightheiser, supra. See, also, Pittsburgh, etc., R. Co. v. Montgomery (1898), 152 Ind. 1, 7, 49 N.E. 582, 71 Am. St. 300; Baltimore, etc., R. Co. v. Little (1897), 149 Ind. 167, 168, 48 N.E. 862.
It is contended by appellant that no specific act of negligence on the part of appellant, or any person for whose conduct it is answerable under either the common law, or § 7083, supra, is alleged in either paragraph of the complaint. It appears from the allegations in each paragraph of complaint that appellee was injured while in the service of appellant as a freight conductor, by the negligence of appellant's locomotive engineer then in appellant's service and in charge of appellant's locomotive engine upon appellant's railway; that said engineer in charge of said locomotive engine "negligently ran said engine and train into, and caused them to collide with, the rear end of one of appellant's freight trains standing on appellant's tracks at a point between Boone and Peoria Junction." This general allegation of negligence of the engineer contained in said paragraphs of complaint was sufficient to withstand a demurrer for want of facts. The thing that the engineer is alleged to have negligently done was that he "negligently ran said locomotive engine and train into, and caused them to collide with, the rear end of appellant's freight-train standing on appellant's track," etc. It has been uniformly held in this State that a general allegation of negligence directly indicating the act or omission complained of, is sufficient to withstand a demurrer for want of facts, and that under such allegation the facts constituting the negligence may be given in evidence. Cleveland, etc., R. Co. v. Berry (1899), 152 Ind. 607, 610, 53 N.E. 415, 46 L.R.A. 33; Louisville, etc., R. Co. v. Bates (1897), 146 Ind. 564, 566, 45 N.E. 108, and cases cited; Louisville, etc., R. Co. v. Berkey (1893), 136 Ind. 181, 194, 35 N.E. 3.
Appellant insists that the statute does not create a liability in favor of a person in charge of a train for the negligence...
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