The Chicago and Erie Railroad Company v. Thomas

• Decision Date: 16 February 1897
• Docket Number: 17,753
• Citation: 46 N.E. 73,147 Ind. 35
• Parties: The Chicago and Erie Railroad Company v. Thomas, Administrator
• Court: Indiana Supreme Court

46 N.E. 73

147 Ind. 35

The Chicago and Erie Railroad Company v. Thomas, Administrator

No. 17,753

Supreme Court of Indiana

February 16, 1897

From the Huntington Circuit Court.

Reversed.

J. B Kenner, U. S. Lesh and W. O. Johnson, for appellant.

J. F France, Z. T. Dungan, J. C. Branyan, Levi Mock and Dailey Simmons & Dailey, for appellee.

OPINION

Howard, J.

This was an action brought by the appellee for damages resulting from the death of his decedent, James L. Platt, caused, as alleged, by his being run over by one of appellant's passenger trains. A former appeal was dismissed, for the reason that it had not been taken from a final judgment, but from an interlocutory order. Thomas, Admr., v. Chicago, etc., R. W. Co., 139 Ind. 462, 39 N.E. 44. The second trial resulted in a verdict and judgment for $ 8,000.00 in favor of appellee.

Many alleged errors are assigned and discussed by counsel, among them being the overruling of the demurrer to each paragraph of the complaint.

The second paragraph of the complaint, in which are embraced the material allegations of the first paragraph, after stating the corporate character of the appellant, and that its said road passes through the incorporated town of Markle, in Huntington county, then continues: "That on the 14th day of January, 1892, the said railroad company had negligently and carelessly suffered and permitted certain persons to pile large and high quantity and to build a lumber deck on their grounds and on their right of way, thereby obstructing the view of persons traveling on said street until they arrive on the main track of said road, and such obstructions making it impossible to ascertain what cars are approaching until reaching said main track. And that on the 14th day of January, 1892, James L. Platt was driving across the defendant's railroad track at a point where Lee street crosses said road, in said town of Markle, with two horses and a mud boat, and while passing over said crossing, without carelessness or negligence on his part, and while using due care and caution, one of the defendant's passenger trains ran over, struck and killed the said James L. Platt; that said passenger train, in approaching said crossing, and the persons managing said train, failed and neglected to sound the whistle or ring the bell in approaching said crossing, and was carelessly and negligently running at a great and unlawful rate of speed through said incorporated town, to-wit, at the rate of forty miles an hour."

Other allegations are made as to the widow and child of the decedent, and as to his capacity to earn a livelihood for them; and there is a prayer for judgment in the sum of $ 10,000.00.

It must be said, in all candor, that the complaint, even with such intendments in its favor as might have been expressed as amendments on a motion to make more specific, is yet a most imperfect pleading. If every allegation were proved, there could still be no recovery.

Considering the second paragraph, appellant suggests at the outset that it is not complete in itself, in this, that without resort to the first paragraph it can not be told who is the plaintiff, or in what capacity he sues. This, we think, is being over critical. It would seem to be sufficient that the names of the parties should be correctly stated in the title of a cause, and that they need not thereafter be referred to in the several paragraphs of the complaint, except generally as plaintiffs or defendants, unless it should become necessary in an allegation to particularize some plaintiff or defendant. Lowry v. Dutton, 28 Ind. 473. Besides, if it had been thought necessary, for any reason, that the plaintiff's name, together with his title as administrator, should be repeated in the second paragraph, that amendment, being one of form rather than of substance, might have been made in the court below, and will therefore be deemed to have been made. Thompson, Admr., v. Edwards, Tr., 85 Ind. 414.

The allegations in immediate relation to the accident, both as to the appellant's negligence and as to the decedent's freedom from contributory negligence, are quite insufficient.

As to what is said of certain persons piling lumber and building "a lumber deck on their grounds and on their right of way, thereby obstructing the view of persons traveling on said street;" even if we are to understand from this that the lumber was piled on the railroad right of way, yet it does not appear how this affected the decedent. Because such lumber piles might obstruct the view of travelers on the street it does not follow that they obstructed the view of the decedent. We are not told in which direction he was driving,...