The Baltimore & Ohio Southwestern Railway Co. v. Young
| Decision Date | 04 December 1896 |
| Docket Number | 17,931 |
| Citation | 45 N.E. 479,146 Ind. 374 |
| Court | Indiana Supreme Court |
| Parties | The Baltimore & Ohio Southwestern Railway Company v. Young |
From the Sullivan Circuit Court.
Reversed.
W. H DeWolf, W. R. Gardiner, J. T. Hays, and E W. Strong, for appellant.
Geo. G Reily and J. W. Emison, for appellee.
The appellee sued and recovered for personal injuries sustained by him in a collision of a train with his wagon at the crossing of a highway and the railway of the then Ohio & Mississippi Railway Company, since consolidated with other companies, and constituting the appellant.
The complaint alleged that the crossing was upon a sharp descending grade, and the railway for a half mile north of the crossing ran through a cut thirty feet deep; that two hundred feet east of the highway and within twenty feet of the railway was a large, tall frame building which obstructed a view to the railway by persons upon the highway approaching the crossing towards the east; that the highway for the distance of a quarter of a mile before reaching the crossing, as he was going, was much lower than the railway at the crossing; that by reason of said conditions a train approaching said crossing from the northeast could not be seen within a quarter of a mile of said crossing, nor until the intersection was reached by one traveling in the direction in which the appellee was driving. It was alleged that the appellee was familiar with the regular time of trains upon the road; that as he approached the crossing it was not the time for a train at that point, and he had no notice or knowledge that a train would then pass said crossing; that "as he was carefully and prudently driving along said highway * * * approaching said railway at said crossing, he listened and looked carefully for a train, but heard none; that no bell was rung nor whistle blown, nor signal of any kind given, and he drove along said highway and upon said crossing at the place aforesaid, whereupon a long heavy passenger train of cars, running at the rate of sixty miles an hour, without any notice of warning as aforesaid, ran against and upon him, in his wagon," inflicting the injuries complained of, "through no fault or negligence on his part."
The appellant insists that its demurrer to the complaint should have been sustained, and the contention is now made that it was insufficient in its allegations of negligence and of the absence of contributory negligence on the part of the appellee, and that it failed to allege facts disclosing that the negligence of the company was the proximate cause of the injury.
It is the general rule in actions for negligence, and it is the rule in cases of the character of the present, that at least three propositions must concur before a liability arises: negligence on the part of the defendant, such negligence is the proximate cause of the injury complained of, and the negligence of the person injured does not contribute to the injury. Cincinnati, etc., R.W. Co. v. Duncan, Admr., 143 Ind. 524, 42 N.E. 37; Lake Erie, etc., R. R. Co. v. Stick, 143 Ind. 449, 41 N.E. 365; Faris v. Hoberg, 134 Ind. 269, 33 N.E. 1028; 16 Am. and Eng. Ency. of Law, p. 422; Elliott on Railroads, sections 1155, 1156; Pittsburgh, etc., R.W. Co. v. Conn, 104 Ind. 64, 3 N.E. 636; Corporation, etc., v. Mathews, 92 Ind. 213; Ohio, etc., R.W. Co. v. Engrer, 4 Ind.App. 261, 30 N.E. 924; Peerless, etc., Co. v. Wray, 10 Ind.App. 324, 37 N.E. 1058; Chicago, etc., R. R. Co. v. McKean, 40 Ill. 218; Cosgrove v. New York, etc., R. W. Co., 13 Hun 329; Barringer v. New York, etc., R. R. Co., 18 Hun 398.
It has been so many times held that a complaint for negligence, to be sufficient, must allege the negligence of the defendant and the freedom of the plaintiff from negligence, that we need not cite authority upon the question of pleading, with reference to these two elements. We are not impressed with the claim that with reference to these two elements of the case the complaint is insufficient. The allegations of failure to give signals of the approach of the train to the crossing of the highway are sufficient, we have no doubt, to disclose the violation of a duty expressly enjoined by statute. Burns' R. S. 1894, sections 5307, 5308 (R. S. 1881, 4020, 4021).
The general allegation of freedom from fault on the part of the appellee has always been held sufficient in this State. The cases holding this rule have been fully collected in a note to Vol. 5, Ency. Pl. and Pr., p. 7. Nor do we agree with counsel for the appellant that the particular allegations as to the care exercised by the appellee are at variance with the general allegation of freedom from negligence. We may suggest, however, that if the sufficiency of the complaint rested upon the particular allegations of care on his part it would be very doubtful if it would be sufficient. As to the essential element of liability that the negligence of the defendant shall be the proximate cause of the injury, it has been specially held, as a question of pleading, that the fact must affirmatively appear to constitute a good complaint. Pittsburg, etc., R. W. Co. v. Conn supra; Corporation, etc., v....
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