Southern Indiana Ry. Co. v. Peyton

• Decision Date: 29 October 1901
• Parties: SOUTHERN INDIANA RY. CO. v. PEYTON.
• Court: Indiana Supreme Court

157 Ind. 690

61 N.E. 722

SOUTHERN INDIANA RY. CO.

v.PEYTON.¹

Supreme Court of Indiana.

Oct. 29, 1901.

Appeal from circuit court, Martin county; H. Q. Houghton, Judge.

Action by Maude F. Peyton, administratrix of the estate of George J. Peyton, deceased, against the Southern Indiana Railway Company. From a judgment in favor of plaintiff and an order denying a motion for a new trial, defendant appeals. Affirmed.F. M. Trissal, J. B. Marshall, and Shea & Wood, for appellant. Elliott, Elliott & Littleton and W. W. Ireland, for appellee.

HADLEY, J.

The Evansville & Indianapolis Railroad Company owns and operates a railroad running north and south by the town of Elnora, in Daviess county, at which place it maintains a station. The Southern Indiana Railway Company, appellant, owns and operates a railroad running east and west from Elnora to Westport, in Decatur county. The latter company uses the former's Elnora station, which it reaches from the north by means of passing its trains over the north stem of a Y onto the main track of the Evansville & Indianapolis, thence backing down to the station, and thence regaining its own track by heading out on the south stem of the Y. On August 24, 1898, as appellant's passenger train No. 1, headed in a northerly direction, was in the act of passing from the Y to the main track of the Evansville & Indianapolis, it collided with the latter's south-bound locomotive drawing its passenger train No. 33, mortally injuring George J. Peyton, appellee's intestate, who was the engineer in charge of said train 33. This action is by Peyton's legal representative to recover damages for the alleged negligent causing of his death. The complaint is in four paragraphs, to each of which a demurrer was overruled. Trial by jury, verdict and judgment for appellee. Errors are assigned upon the overruling of the demurrers and motion for a new trial. The objections urged to the sufficiency of the complaint are common to each paragraph. The basis of these objections seems to be the absence from the second paragraph of any averment that the decedent was free from contributory fault, the insufficiency of such averments in the first, third, and fourth paragraphs, and the natural inference of contributory negligence, arising from the want of an averment in all the paragraphs that the decedent stopped his train and looked and listened before attempting to pass the intersecting point of said railroads. The cause of action accrued prior, and this suit was commenced subsequent, to the taking effect of the act of 1899 (Acts 1899, p. 58), which shifts the burden of proving contributory negligence to the defendant. It is claimed (1) that this act is unconstitutional, and, (2) if valid, that it does not apply to this case.

The act's constitutionality has already been affirmed. Railway Co. v. Robinson (at this term, October 3, 1901) 61 N. E. 197. And we cannot concede that the act does not apply to this case. The statute reads: “That hereafter in all actions for damages brought on account of the alleged negligence of any person, copartnership or corporation for causing personal injuries, or the death of any person, it shall not be necessary for the plaintiff in such action to allege or prove the want of contributory negligence on the part of plaintiff, or on the part of the person for whose injury or death the action may be brought. Contributory negligence, on the part of the plaintiff, or such other person, shall be a matter of defense, and such defense may be proved under the answer of general denial, provided, that this act shall not affect pending litigation.” Acts 1899, p. 58. Remedial statutes, such as this, which affect only the procedure and practice of the courts in the enforcement of a right, and which do not impair the right itself, or wholly destroy a pre-existing remedy, are retroactive in the sense that they must be applied to causes of action existing at the time of their passage in all cases where the suit is subsequently commenced. End. Interp. St. §§ 285-287; Insurance Co. v. Talbot, 113 Ind. 373, 378, 14 N. E. 586, 3 Am. St. Rep. 655;Logan v. Logan, 77 Ind. 558, 563;Ralston v. Lothain, 18 Ind. 303;City of Indianapolis v. Imberry, 17 Ind. 175, 179;Collier v. State, 10 Ind. 58;Judkins v. Taffe, 21 Or. 89, 27 Pac. 221;Howard v. Moot, 64 N. Y. 262;State v. Shreves, 81 Iowa, 615, 622. 47 N. W. 899;Wallace v. Railroad Co. (N. C.) 10 S. E. 552. The rule springing from such legislation seems to be that litigants must prosecute or defend in the manner prescribed at the time the suit is entered, without reference to when the cause of action accrued, or the character of previously existing forms of procedure, though it may turn out that present modes are less advantageous to one of the parties; the practice and procedure of courts being continuously subject to legislative control. End. Interp. St. § 285, and authorities cited. The statute before us does not in any manner excuse or relieve the plaintiff from the consequences of contributory negligence long recognized by the law, nor make the presence of concurrent fault less effective to the defendant in escaping liability. Its obvious purpose was to restore to litigants in such cases the just and reasonable rule of the common law as interpreted by the English courts, and from which this court had radically departed. Under the ancient rule alluded to, and which is adhered to in most of the states of the Union, the plaintiff in such cases is required to allege and prove by a preponderance of evidence that the defendant's negligence was the proximate cause of his injuries; and if he has, by his own conduct, forfeited his right of recovery, this delinquency,when not voluntarily disclosed by the plaintiff, if made available to the defendant, must be established by him as a matter of defense by a like preponderance. Such is the full meaning of the statute under consideration, and it must, therefore, be held to govern the pleadings and procedure in this case. Applying the statute of 1899 to the complaint, and the question arising upon the total absence of any averment in the second paragraph and upon the insufficiency of averments in the other paragraphs of freedom from contributory negligence becomes immaterial.

With respect to appellant's second proposition we deem it proper to say that no adverse inference will arise upon a pleading from the absence of unnecessary averments. Under the statute it was not necessary for the plaintiff to allege and prove the decedent's freedom from contributory negligence. Railroad engineers, like persons in all other vocations, are presumed to do what the law requires of them; and, if due care required him to stop his train and look and listen before attempting to pass the point of junction, if any presumption will arise from the absence of an averment as to the fact, it must be that he did stop it. If he did not stop it, his transgression, if accounted contributory negligence, was a matter of defense that should be established by evidence, not by presumptions. At least two of the paragraphs of complaint show that the decedent's train was due at Elnora station at 11:50, and that appellant's train was due at the same place at 11:52, a. m., and it is averred that the decedent's train was running five minutes late. From these facts it is urged that the complaint reveals culpable negligence on the part of the decedent, in that he approached and attempted to pass the place of intersection with the knowledge that appellant's train was due to be on his track at that particular time and place, without first stopping his train, or taking any other precautions to avoid the danger reasonably to be expected. We cannot admit the premise necessary to the validity of the argument. It appears from the complaint that appellant's Y is situated one-fourth of a mile north of the Elnora station, and nothing appears as to when appellant's train was due on the Y at the point where the collision occurred, or that the decedent knew when it was due there. If appellant's train was on time, and proceeded without stopping on the Y, in violation of its alleged duty, and without unnecessary delay, we would be unable to say judicially that it could have switched its train onto the Evansville & Indianapolis track, and backed it down to the station in three minutes; and yet this would be necessary in charging the decedent with knowledge that appellant's train was due at the place of collision when he arrived there with his train.

There are other questions here discussed which are ineffectual to impair the complaint, and which more properly arise upon the answers to interrogatories. Certain other questions suggested should have been reached by motion to make more specific. We think each paragraph of the complaint was sufficient to withstand a demurrer.

Upon the conclusion of the plaintiff's evidence, appellant unsuccessfully moved the court to direct the jury to return a verdict in its favor. Appellant was likewise unsuccessful in its motion for judgment in its favor upon...