Southern Ry. Co. v. Jones

• Decision Date: 09 June 1904
• Docket Number: No. 4,839.,4,839.
• Citation: 33 Ind.App. 333,71 N.E. 275
• Parties: SOUTHERN RY. CO. v. JONES.
• Court: Indiana Appellate Court

33 Ind.App. 333

71 N.E. 275

SOUTHERN RY. CO.

v.JONES.

No. 4,839.

Appellate Court of Indiana, Division No. 2.

June 9, 1904.

Appeal from Circuit Court, Crawford County; C. W. Cook, Judge.

Action by William P. Jones against the Southern Railway Company. From a judgment in favor of plaintiff, defendant appeals. Reversed.

A. P. Humphrey, John D. Welman, M. W. Fields, and J. L. Suddarth, for appellant. Cox & Hunter and R. W. Armstrong, for appellee.

COMSTOCK, J.

Action by appellee against appellant for personal injuries sustained while being carried as a passenger on appellant's freight train on the 4th day of January, 1902. The complaint is in two paragraphs. The first charges that while appellee was a passenger on one of appellant's local freight trains, going to the city of Huntingburgh, the appellant carelessly detached the train from the caboose and ran the engine ahead, and stopped it on the main line, and then permitted the caboose to follow down a steep grade, without any brakes being set, until it collided with the rear of the train, whereby appellee was thrown from his seat in the car and injured. The second charges that appellee was a passenger upon appellant's freight train, and that appellant negligently used defective brakes, brake shoes, rods, and beams, which, on account of their defective condition, would not hold the caboose when applied thereto, and that it negligently violated a city ordinance of the city of Huntingburgh regulating the speed of trains, and that appellee's injury was due to the combined effect of said defective brake and the violation of said ordinance, and not otherwise. The cause was put at issue by general denial, and tried by a jury, which returned a verdict in favor of appellee for $1,850, upon which the court rendered judgment. The errors discussed are the actions of the court in overruling appellant's demurrer to the second paragraph of the complaint and the motion for a new trial.

The complaint charges as negligence the use of defective brakes, and the running of the cars at a high rate of speed, in violation of a city ordinance which made it unlawful to run a locomotive, train, or cars at a greater rate of speed than eight miles an hour within the corporate limits of the city of Huntingburgh. The specific allegation is as follows: “That by reason of the carelessness and negligence of said defendant in failing and neglecting to properly and securely supply said caboose with good, sound, safe, and secure appliances, whereby the speed of the same could be controlled, and by reason of the carelessness and negligence of said defendant in running its said train at such high rate of speed, to wit, 20 miles per hour, within the corporate limits of said city of Huntingburgh, and thereby causing said collision as aforesaid, he received his said injuries, and not otherwise.” The injury is thus stated to be due to the two causes named. In the third instruction the jury were told that, if the plaintiff was injured by reason of the fact that the train was run in excess of the rate allowed by the city ordinance, together with the further fact that the caboose in question had defective brakes, they should find for the plaintiff. In the sixth instruction given the jury of its own motion the court stated the theory of the paragraph to be that the plaintiff was injured by the combined effect of two acts-the running of the train in excess of eight miles an hour, in violation of a city ordinance, and in not having a proper and sufficient brake on the caboose to check it.

We look to the leading allegations of a complaint to determine its theory. C., C.,...