Southern Indiana Ry. Co. v. Messick

• Decision Date: 20 June 1905
• Docket Number: No. 5,238.,5,238.
• Parties: SOUTHERN INDIANA RY. CO. v. MESSICK.
• Court: Indiana Appellate Court

35 Ind.App. 676

74 N.E. 1097

SOUTHERN INDIANA RY. CO.

v.MESSICK.

No. 5,238.

Appellate Court of Indiana, Division No. 2.

June 20, 1905.

Appeal from Circuit Court, Daviess County; H. Q. Houghton, Judge.

Action by George W. Messick against the Southern Indiana Railway Company. From a judgment in favor of plaintiff, defendant appeals. Reversed.

F. M. Trissal, Brooks & Brooks, and Gardiner & Slimp, for appellant. Hastings, Allen & Hastings, for appellee.

COMSTOCK, J.

The second paragraph of complaint on which the cause was tried is substantially as follows (omitting formal parts): That on September 1, 1902, plaintiff was employed by the defendant to work as a common laborer and section hand on a certain section of defendant's said railroad (describing the terminal of said section); that on September 25, 1902, the plaintiff was again employed by the defendant in the same capacity, and continued this work for two days, September 25 and 26, 1902; that the plaintiff resided at the town of Odon, in Daviess county, during the whole time he was in the employment of the defendant; that defendant agreed in the said last employment, in addition to the per diem wages to be paid the plaintiff, to transport him each day from his home to the place where his work was to be performed, and from that place back to his home at night, after his day's work was completed; that on said September 26th the defendant, for the purpose of transporting plaintiff and other laborers under like employment from the place where they had performed their work on that day to their respective homes, had and used a train consisting of a locomotive engine and tender, one common box car used for a tool car, and one car used as a passenger coach, and constructed on the plan of a caboose of a freight train, with the seats for the passengers constructed against the sides of the car, and running parallel therewith; that on said last-named day the defendant attempted to transport the plaintiff, with other persons, on said train from the place where he had performed his work for the defendant on that day to his home at said town of Odon, but the person in charge of said locomotive engine and the person in charge of the train, both of whom were in the service of the defendant, negligently ran the locomotive engine backward with the tender in front, the said tool car behind the said locomotive engine, and the said passenger car, in which plaintiff was riding, behind said tool car, and negligently ran the said locomotive engine and train at a rate of speed of 60 miles per hour, and on account of such negligence, and while the said locomotive engine and train were running on the main track of the defendant's railway at a point between and in said county of Greene, the said locomotive engine and train ran off the said main track, and violently turned over, and plaintiff was with great violence thrown about in said car and injured, etc.; that when the plaintiff entered the said car for the purpose of being transported by the defendant as aforesaid he had no knowledge that the persons in charge of the said locomotive and train upon said railway would so negligently run the same as aforesaid; that plaintiff, on account of his inexperience, had no knowledge that it was dangerous for him to ride in said car with the said locomotive engine running backward with the tender in front as aforesaid. The cause was put at issue by a general denial. A trial by jury resulted in a verdict of $1,460 in favor of appellee, on which judgment was rendered.

The first specification of error discussed challenges the sufficiency of the second paragraph of the complaint. Various objections are pointed out, the chief of which is that it does not aver any negligent conduct against appellant. The language employed in the numerous decisions of our courts in passing upon the sufficiency of complaints in negligence cases has been intended to apply to the particular averments under consideration. Many of them are more useful for illustration than precedent. The expression of the Supreme Court in Evansville, etc., R. Co. v. Krapf, 143 Ind. 647, 36 N. E. 901, has been followed and adopted in subsequent cases: “It is not necessary in such a complaint to recite all the facts and circumstances that may tend to show that the act complained of was negligent. It is settled by the decisions of this court that a complaint charging the defendant with an act injurious to plaintiff, with a general allegation of negligence in the performance of the act, is sufficient to withstand a demurrer to the complaint for want of sufficient facts, and that under such allegation any evidence tending to show that the act was negligently done may be admitted; otherwise the evidence would have to be pleaded instead of the facts.” See, also, Chicago & Eastern Ill. R. Co. v. Grimm, 25 Ind. App. 494, 57 N. E. 640;Terre Haute & Indianapolis R. Co. v. Sheeks, 155 Ind. 74, 56 N. E. 434;Evansville, etc., R. Co. v. Krapf, 143 Ind. 647, 36 N. E. 901. The court did not err in overruling the demurrer.

The action of the court in overruling the demurrer to the second paragraph of the complaint for want of sufficient facts, and overruling the motion for a new trial, are the only errors assigned. That the verdict is not sustained by sufficient evidence is one of the reasons set out in the motion for a new trial. The evidence shows that the appellee was in the employ of the defendant, and was riding home at the close of the day from his work on a work train drawn by a locomotive backward at from 18 to 45 miles an hour (the engineer and conductor of the train fixed the rate at 18 or 20 miles an hour), when the train ran off the track and he was injured. There was no evidence tending to show that...