Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company v. Lightheiser

• Decision Date: 02 June 1904
• Docket Number: 20,218
• Citation: 71 N.E. 218,163 Ind. 247
• Parties: Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company v. Lightheiser
• Court: Indiana Supreme Court

71 N.E. 218

163 Ind. 247

Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company v. Lightheiser

No. 20,218

Supreme Court of Indiana

June 2, 1904

Rehearing Denied June 30, 1904, Reported at: 163 Ind. 247 at 264.

From Cass Circuit Court; T. F. Palmer, Special Judge.

Action by George W. Lightheiser against the Pittsburgh, Cincinnati Chicago & St. Louis Railway Company. From a judgment on a verdict in favor of plaintiff for $ 6,500, the defendant appeals.

Reversed.

G. E Ross, for appellant.

Frederick Landis, S. T. McConnell, A. G. Jenkines, B. C. Jenkines and C. H. Stuart, for appellee.

OPINION

Gillett, J.

Appellee instituted this action against appellant to recover for an injury to his person. His complaint was in four paragraphs, to each of which appellant unsuccessfully demurred. Issues of fact were joined, and there was a verdict and judgment for appellee.

The errors assigned bring in question the rulings on demurrer above mentioned, the overruling of a motion made by appellant for judgment in its favor on the answers returned by the jury to interrogatories, and the overruling of appellant's motion for a new trial.

According to all of the paragraphs of complaint, appellee, who was an employe of appellant as a locomotive engineer, received his injury in the city of Logansport, during the night-time, by being knocked down and run over by a mail-car belonging to appellant, which was being run backwards in appellant's yards. It is averred in said paragraphs that appellee had been ordered to make a trip upon appellant's road; "that, in obedience to said order, plaintiff, as was his duty under his employment, took his position at a point between the track on which his locomotive was standing and the track on which said mail-car was approaching, for the purpose of examining, accepting, and assuming control of said locomotive, when said locomotive began to move; and that said locomotive and the mail-car passed him at the same time, leaving a space of but four feet between the locomotive and car where he might stand. It is further alleged that while appellee was occupying this position, "as was his duty to do under his employment," he was knocked down and run over by said mail-car.

The first paragraph of complaint charges that "it was the duty" of appellant to provide said car with a person stationed on the forward end thereof, as it was being moved, supplied with a proper signal light, to warn appellee and other persons using the grounds between and adjacent to appellant's tracks, and also to provide said car with an air-brake attachment, so that said car could be stopped by a brakeman upon the discovery of anyone in imminent peril of life or limb from being run over by said car. It is alleged that appellant negligently and carelessly omitted to take such precautions, and that appellee was run upon and injured by reason of the negligent movement as aforesaid.

The second paragraph of the complaint counts on the negligence of the engineer in control of the locomotive which was moving said mail-car. He is charged with negligently moving said car backwards without having a person stationed on the end thereof, so as to perceive the first sign of danger, and to signal the engineer, as required by a rule of appellant. Said engineer is also charged in said paragraph with negligence in moving said car in violation of certain ordinances of the city of Logansport. It is also alleged that appellee was run over by said car as a result of the negligence pleaded.

In appellee's third paragraph of complaint it is alleged that "it was the duty" of appellant's yard conductor, who had charge of said car and the locomotive attached, to take the particular precautions which we have mentioned in connection with our statement as to the first paragraph of complaint. It is further alleged that such yard conductor negligently and carelessly omitted to take such precautions, and that by reason thereof appellee was run upon and injured by said car.

The fourth paragraph of complaint, like the first and third, contains a direct charge as to appellant's duty to take certain precautions; and it is further alleged that appellant employed an incompetent and inexperienced brakeman or flagman upon said car, knowing him to be incompetent and inexperienced, and that the latter omitted to take the precautions which it is alleged it was appellant's duty to take in connection with the movement of said car, and that as a result appellee was run over.

Each of said paragraphs is quite long, and it is but just to appellee's counsel to state that there has been no attempt upon our part to exhibit all of the details of said paragraphs. It has only been our endeavor to make such a statement concerning them as would furnish a basis for this opinion.

The first paragraph of complaint is insufficient. It is well settled that a complaint for negligence must disclose by proper averments the existence of a duty upon the part of the defendant, or of the person alleged to be negligent, where it is a case of imputed negligence, as, under an employers' liability act, to exercise care toward the person injured. Muncie Pulp Co. v. Davis (1904), 162 Ind. 558, 70 N.E. 875; American Rolling Mill Co. v. Hullinger (1904), 161 Ind. 673, 67 N.E. 986; Faris v. Hoberg (1892), 134 Ind. 269, 33 N.E. 1028, 39 Am. St. 261; Louisville, etc., R. Co. v. Sandford (1889), 117 Ind. 265, 19 N.E. 770; Zimmerman v. Baur (1894), 11 Ind.App. 607, 39 N.E. 299. The direct statement that it was the duty of a defendant to do or not to do a certain act is a mere conclusion of law. The rule is that facts must be alleged from which the law will imply the existence of the underlying duty. Indianapolis, etc., Transit Co. v. Foreman (1904), 162 Ind. 85, 69 N.E. 669, and cases cited; Seymour v. Maddox (1851), 16 Q. B. 326; Brown v. Mallett (1848), 5 C. B. 599, 57 Eng. C. L. 598; City of Buffalo v. Holloway (1852), 7 N.Y. 493, 57 Am. Dec. 550; West Chicago St. R. Co. v. Coit (1893), 50 Ill.App. 640. And see Hopper v. Covington (1886), 118 U.S. 148, 6 S.Ct. 1025, 30 L.Ed. 190.

In Brown v. Mallett, supra, the declaration charged that "thereupon it became the duty of the defendant" to do certain things. Of this Maule, J., said: "But the allegation now in question is open to the further objection, that, however directly averred, it is an averment of matter of law only, and not of matter of fact. If the words had been, that the defendant became bound by law to do certain acts, it could not be questioned that that was an allegation of matter of law; and the words 'it became the duty of the defendant,' if they were to be understood as averring the existence of some duty different from that arising out of a legal obligation, certainly would not aid the declaration, inasmuch as the breach of such a duty does not give a cause of action. But, if they be understood, as we think they are, as averring the existence of a legal liability, it is well established that such an averment, being an averment of matter of law, will not supply the want of those allegations of matter of fact from which the court could infer the law to be as stated; so that such allegation is useless where the declaration is insufficient, and superfluous when sufficient without it."

Seymour v. Maddox, supra, was a master and servant case, where there was an express allegation of duty. In holding that the judgment must be arrested, Lord Campbell said: "The duty, a breach of which is laid, does not arise from the particular facts stated in the declaration nor from the general relation of master and servant. What, then, is the effect of the positive allegation of such duty? I confess that I, at first, thought that where a relation, from which a particular duty may arise, is alleged, and the particular duty is also alleged, it might be shown in evidence that, in fact, such a duty did arise, and that it was unnecessary to set forth the facts themselves which raise the duty. But the decisions show that the allegation of duty is in all cases immaterial, and ought never to be introduced; for, if the particular facts raise the duty, the allegation is unnecessary, and if they do not, it will be unavailing. In this case there is an allegation that it was the defendant's duty to light the floor and fence the hole, but no facts are stated from which the duty arises. The express allegation, therefore, will not help the defect, and the declaration is bad."

Returning to the paragraph of complaint under consideration, it is first to be observed, since the paragraph is drawn on the theory of a common law liability, that, for aught that is pleaded, the person who caused said car to be moved without having a brakeman or lookout upon it was himself a fellow servant of appellee, for whose acts or omissions appellant was not liable. Southern Ind. R. Co. v Martin (1903), 160 Ind. 280, 66 N.E. 886. It devolved upon appellee to show, by proper allegations of fact, that it was a duty which belonged to the master that had been neglected. Southern Ind. R. Co. v. Harrell (1904), 161 Ind. 689, 68 N.E. 262, 63 L.R.A. 460. As was pointed out in the case last cited, the duty of the master with respect to providing a proper place to work does not require that the master should at all times keep the place safe as against transient perils occasioned by the negligence of other servants who are engaged in executing the details of the work. There is enough to suggest in said first paragraph that possibly appellant was delinquent in the matter of omitting to furnish proper appliances, but there is not sufficient alleged in such particular. The allegations of the paragraph do not aid us in determining whether a duty existed. There is nothing in the pleading to...