The Chicago And Indiana Coal Railway Company v. McDaniel

• Decision Date: 29 November 1892
• Docket Number: 15,051
• Citation: 32 N.E. 728,134 Ind. 166
• Parties: The Chicago and Indiana Coal Railway Company v. McDaniel
• Court: Indiana Supreme Court

32 N.E. 728

134 Ind. 166

The Chicago and Indiana Coal Railway Company v. McDaniel

No. 15,051

Supreme Court of Indiana

November 29, 1892

Petition for a Rehearing Overruled Apr. 18, 1893, Reported at: 134 Ind. 166 at 178.

From the Fountain Circuit Court.

Judgment reversed, with instructions to the circuit court to grant a new trial.

S. H Spooner, I. E. Schoonover and W. B. Reed, for appellant.

J McCabe and E. F. McCabe, for appellee.

OPINION

Olds, J.

This is an action instituted by the appellee against the appellant, in the court below, for damages alleged to have been sustained by the appellee through the negligence of the appellant.

The amended complaint upon which the trial was had is in two paragraphs, to which demurrers were overruled, and exceptions reserved. An answer was filed, the cause submitted to the jury, a special verdict returned, and judgment rendered in favor of the appellee.

Numerous errors are assigned and discussed. The first error discussed relates to the ruling of the court in overruling the demurrer to the first paragraph of the complaint. As stated in their brief by counsel for appellant, and not controverted by the appellee, the material averments in this paragraph are as follows:

"That on or about September 21st, 1887, plaintiff bought a lot of lumber of the Colburn Lumber Company, which owned the same in the city of Attica, Indiana, part of which lumber was still on a flat-car on which it was shipped, then standing on an open side track of defendant's road, which railway runs into Warren county, Indiana, which side-track runs about north and south in a public street in said city; that said side track was provided by defendant for the use of said lumber company and the public in unloading cars consigned to parties at said place, and particularly cars loaded with lumber, and was so used by the public, and plaintiff was on said car in accordance with said custom, and defendant put said car at said point for the purpose of being unloaded as aforesaid; that said flat-car was standing between high box-cars on said side track on said public street, so that the plaintiff's view southward was wholly obstructed when on said flat-car; that in unloading said lumber from said car, it became necessary for plaintiff to assist in unloading the same, and plaintiff was requested so to do by said lumber company, and plaintiff for that purpose got upon the south end of said flat-car, and was engaged and so situated when the defendant's employes, agents, and servants in charge of a train of defendant's cars and engines coming from the south and going north, negligently made what is known as a drop switch of two cars from said train, * * * and without any fault on plaintiff's part, and wholly by the carelessness of the defendant, caused plaintiff to be thrown down between said flat-car and the said high box-car aforesaid. * * * All of which injuries were caused solely by the fault and negligence of defendant, her agents and servants, and without any fault or carelessness on the part of the plaintiff."

It is urged that this paragraph of the complaint is bad, and that the demurrer should have been sustained to it. The first objection urged to the paragraph is "that it does not appear from the averments of the complaint that appellee was rightfully on the car when the injury is alleged to have occurred, but the contrary is shown to have been the fact." It is insisted that it must appear, from the complaint, that appellee was at the place where the injury occurred by invitation, either express or implied, of appellant. It is conceded, as we understand counsel in their brief, that he was rightfully there if he was there by the invitation of the lumber company. It is contended that the facts stated do not show an executed contract for the purchase of the lumber on the car, for the reason that it does not appear that all the lumber on the car was included in appellee's purchase.

The question as to whether or not the complaint might have been made stronger by more explicit averments, is not for us to determine, but as to whether or not the complaint, as it is, states facts sufficient to withstand a demurrer.

We think the fair import of the language used in the complaint authorizes the conclusion that it states the facts to be that the appellant delivered a car loaded with lumber owned by the Colburn Lumber Company on a side-track provided by appellant upon which to deliver cars to remain, to be unloaded by the Colburn Lumber Company, or any other person owning the lumber upon the cars so delivered, thus to be unloaded; that the particular car in question was loaded with lumber consigned to and owned by the Colburn Lumber Company; that appellee had purchased a lot of lumber of said lumber company, and a part of such lumber so purchased was upon this particular flat-car. Appellee having purchased the lumber on the flat-car, he was assisting the lumber company, at its request, in unloading the car, and in doing so was upon the car.

We do not deem it necessary, to make the complaint good, that its averments should show explicitly that there was an executed contract to purchase a particular separate portion or all of the lumber upon the car. If the appellee had purchased a bill of lumber of the lumber company, a part of which was upon the car not separated from the other, and he, as is averred, entered upon the car at the request of the lumber company to assist in unloading the car, he would be lawfully upon the car; for, if it was an undivided portion of the lumber upon the car, the unloading would be a necessary step toward the separation of the lumber, in executing the contract; but the language of the complaint may be fairly construed to mean that the lumber upon the car was a part of the bill of lumber purchased by the appellee of the company. It is insisted that, even if it is averred that appellee was requested by the lumber company to assist in unloading the lumber, it does not appear that he was requested, in so doing, to get upon the car to do so; for, in unloading lumber from a car, it is just as necessary for one person to be off the car as for another to be on the car. We do not think it will do to place such a narrow construction on the language of the complaint. A request to assist in unloading the lumber from the car carried with it the right to be at any proper place to do the work, whether such place be on or off the car.

It would not do to hold that if one was requested to assist in unloading a car he would be protected against the negligence of another if he stood by the side of the car, but would not be if he stood upon the car, unless he was specially requested to stand upon the car while so engaged in unloading it.

We think the averments of the complaint show the appellee to have been lawfully upon the car at the time the injury occurred.

It is further urged that the complaint is not sufficient, for the reason that it does not appear that the appellee did not know, that the train of cars was approaching before he got upon the car, or that, by looking before getting upon it, he could not have seen the cars coming upon the side track, and thus have avoided the injury. The complaint alleges that the injury was caused wholly by the fault and negligence of the appellant, and without any fault or carelessness on the part of the appellee. This general averment is sufficient to withstand a demurrer. This averment denies any negligence in failing to look for a train, as well as any negligence which caused or contributed to the collision of the cars, which produced the injury. Pennsylvania Co. v. O'Shaughnessy, Admr., 122 Ind. 588, 23 N.E. 675.

We think the complaint sufficient, and the construction we have placed upon it well supported by authority and not inconsistent with the rules insisted upon by counsel for the appellant for the construction of pleadings.

A pleading must not only be judged by its general scope, as held by numerous decisions of this court (Rollet v Heiman, 120 Ind. 511, 22 N.E. 666; First Nat'l Bank v. Root, 107 Ind. 224, 8 N.E. 105; Louisville, etc., R. W. Co. v. Schmidt, 106 Ind. 73, 5 N.E. 684; Over v. Schiffling, 102 Ind. 191, 26 N.E. 91), but the language used must be given a reasonable and fair construction, and if by placing such construction upon the pleading it will withstand a demurrer, a demurrer to it should be overruled, and this is not inconsistent with the rule, as held by this court, that doubts arising upon pleadings, or where pleadings are ambiguous, they are to...