Southern Ry. Co. v. Elliott

• Decision Date: 19 December 1907
• Docket Number: No. 21,038.,21,038.
• Citation: 170 Ind. 273,82 N.E. 1051
• Parties: SOUTHERN RY. CO. et al. v. ELLIOTT.
• Court: Indiana Supreme Court

170 Ind. 273

82 N.E. 1051

SOUTHERN RY. CO. et al.

v.ELLIOTT.

No. 21,038.

Supreme Court of Indiana.

Dec. 19, 1907.

Appeal from Circuit Court, Dubois County; E. A. Ely, Judge.

Action by Louis W. Elliott against the Southern Railway Company and others. From a judgment for plaintiff against the Southern Railway Company alone, it appeals. Transferred from Appellate Court (81 N. E. 1180) under Burns' Ann. St. 1901, § 1337o. Reversed, with instructions.A. P. Humphrey, John D. Welman, and M. W. Fields, for appellant. Cox & Armstrong and Solomon H. Esary, for appellee.

JORDAN, J.

Appellee instituted this action in the lower court against appellant, the Southern Railway Company, Joseph Ruggles, and the Southern Railway Company of Indiana, to recover damages on account of personal injuries sustained by him while in the service of appellant railroad company. Appellant unsuccessfully petitioned the trial court to remove the cause to the federal court on the ground of diversity of citizenship. Upon the issues joined there was a trial by jury and a general verdict returned against appellant, awarding appellee damages in the sum of $6,000. Answers also to interrogatories propounded to the jury were returned, along with said verdict. The jury found in favor of the appellant's codefendants. Appellant moved for a new trial, assigning various reasons therefor. This motion was overruled, and judgment on the verdict was rendered against appellant company. A judgment was rendered in favor of the other defendants for costs.

To reverse the judgment against it, appellant prosecutes what may be considered a vacation appeal, and has assigned the following alleged errors upon which it relies for reversal: First, overruling its petition to remove the cause to the federal court; second, overruling the demurrer to the first and second paragraphs of the complaint; third, overruling the motion for judgment and upon the answers of the jury to the interrogatories; fourth, overruling the motion for new trial. Appellee presents and urges as a threshold proposition that the appeal of appellant must be dismissed because it was taken in vacation, and the codefendants, Joseph Ruggles and the Southern Railway Company of Indiana, have not been made parties to the appeal. While it is true that these latter parties were codefendants of appellant in this action, nevertheless they were not its co-parties to the judgment from which it has appealed. As hereinbefore shown, the verdict of the jury was against appellant, but in favor of said codefendants. Likewise the judgment of the court was against appellant, but in favor of said codefendants. Therefore, the latter can have no interest whatever in the judgment, which to reverse appellant prosecutes this appeal. They are neither necessary nor proper parties to this appeal. Therefore appellee's contention that the appeal be dismissed is denied. Easter v. Severin, 78 Ind. 540;Berghoff v. McDonald, 87 Ind. 549;Lowe v. Turpie, 147 Ind. 652, 692, 44 N. E. 25, 47 N. E. 150, 37 L. R. A. 233.

The first error discussed by counsel for appellant is that relating to overruling the petition to remove the cause to the federal court. We are, however, precluded from reviewing or considering this question because the ruling of the trial court denying the petition was not assigned as a reason in the motion for a new trial. It cannot be presented by the independent assignment of error. Southern R. Co. v. Sittasen, 166 Ind. 257, 76 N. E. 973. The complaint is in two paragraphs, but each party concedes that the case was tried solely upon the second. Therefore, the first paragraph, so far as this appeal is concerned, may be considered as eliminated from the case.

Appellant's counsel next argue that the second paragraph of the complaint is not sufficient in facts to constitute a cause of action against appellant; and therefore the court erred in overruling the demurrer. Counsel for appellee urge some objections to the demurrer and against the exceptions reserved upon the ruling of the court thereon. The demurrer upon its face shows that each of the defendants for himself demurred separately and severally to each paragraph of the complaint, for the reason that neither paragraph states facts sufficient to constitute a cause of action. The record recites that “the demurrer is now overruled by the court, to each of which rulings of the court each of the defendants separately at the time excepted.” The objections advanced by counsel for appellee are that the demurrer is not good nor in proper form, and that the statement therein that neither paragraph of complaint states facts sufficient to constitute a cause of action was not sufficient to raise the question that it did not state facts sufficient to constitute a cause of action against any one of the defendants. It is further insisted that the record discloses that the demurrer was overruled, but that it does not show which of the demurrers, and that the exception to the ruling must be regarded as a ruling on one of the demurrers only, and the case of Noonan v. Bell, 159 Ind. 329, 64 N. E. 909, is cited in support of appellee's argument. There is no merit in appellee's contention. The demurrer was sufficient in form as to challenge the sufficiency of each paragraph of the complaint as to each of the defendants demurring. Whitesell v. Strickler; 167 Ind. 602, 78 N. E. 845. The cases of Noonan v. Bell, supra, and the Southern Indiana R. Co. v. Harrell, 161 Ind. 689, 68 N. E. 262, 63 L. R. A. 460, so far as they can be said to sustain the point raised by counsel for appellee, are expressly disapproved or overruled by the case last cited. The second paragraph of the complaint, among other things, alleges that “said railway defendants were railway corporations, duly and legally organized and incorporated, the former under the laws of the state of Virginia and the latter under the laws of the state of Indiana; that these defendants operated a line of steam railway extending from Louisville, Ky., to St. Louis, Mo.; that said line in its course to and from said points passes through the county of Dubois, in the state of Indiana, and through the town of Golden Gate, in the state of Illinois”; that “among the employés working for said railway defendants on the 29th day of April, 1904, the date of the alleged injuries to plaintiff herein, was this plaintiff and the codefendant of said railway, to wit, Joseph Ruggles; that on the day aforesaid the plaintiff was employed by defendant as a brakeman on a freight train, and was at the time of the receipt of his injuries engaged in working upon the freight train run by defendants from East St. Louis, Ill., over and upon their line of railway to Princeton, Ind.; that Joseph Ruggles was employed by said railway defendants as a locomotive engineer, and as such had charge and control of the locomotive engine drawing the train upon which this plaintiff was laboring at the time he received his injuries.” The paragraph further alleges that “at Mt. Vernon, in the state of Illinois, said defendants coupled and fastened their train to an old, worn, and defective car for the purpose of hauling said car to Princeton, to have same repaired; that the drawbars, drawheads, bumpers, rods, and timbers supporting said machinery, on account of the long and continued use thereof in said car, had become and were worn, rotten, decayed, and defective, so much so that, when the engine was backed up to and against said car, the force of said collision caused by said car and said engine coming in contact with each other, on account of the rotten, decayed, and defective condition of said drawbars, drawheads, bumpers, rods, and timbers supporting same, caused said drawbars, drawheads, timbers, rods, and bumpers to break and give way; that, when said drawbars, drawheads, bumpers, and timbers broke and gave way, said engine thereby pressed up to and against said car, thereby catching plaintiff between said engine and car, mashing and permanently crippling and injuring him; that at Golden Gate, in the state of Illinois, it became necessary to uncouple said defective car from said engine; that in making said uncoupling between said engine and car it became and was the duty of this plaintiff to go between said engine and car for the purpose of uncoupling said car from said engine, and while performing his duty in making said uncoupling, and while between said car and engine engaged in making said uncoupling, he was, without any negligence or carelessness whatever upon his part, but by and through the negligence and carelessness of defendant, hurt and permanently crippled for life; that said railway defendants were guilty of carelessness and negligence at said time in using said car with old, rotten, and defective drawbars, drawheads, bumpers, and timbers supporting the same, which said drawbars, drawheads, bumpers, and timbers, on account of their rotten and decayed condition, could not withstand the force and shock of said engine being backed up to and against said car, but, on account and by reason of the rotten, defective, and decayed condition of said drawbars, drawheads, bumpers, and timbers in said car where said engine backed up and against said car, the drawbars, drawheads, bumpers, and timbers broke and gave way, and as a result thereof said car and said engine came together, thereby catching the plaintiff between the same, while he was in the line of his duty engaged at his work, mashing, wounding, and permanently...