The Chicago, St. Louis And Pittsburgh Railroad Company v. Spilker

• Decision Date: 17 May 1893
• Docket Number: 15,401
• Parties: The Chicago, St. Louis and Pittsburgh Railroad Company v. Spilker
• Court: Indiana Supreme Court

34 N.E. 218

134 Ind. 380

The Chicago, St. Louis and Pittsburgh Railroad Company v. Spilker

No. 15,401

Supreme Court of Indiana

May 17, 1893

Original Opinion of February 2, 1893, Reported at: 134 Ind. 380.

OPINION

Howard, J.

The appellant asks for a rehearing in this case, still insisting that the evidence given by the witnesses Reuben A. Riley, Jerome Black, and Dr. Kelsey was improperly admitted. The questions presented have already been fully considered by the court, except, perhaps, the additional reason, now more fully brought forward by appellant, why the testimony of the witness Riley should not have been received--that it was not good under the theory of the complaint.

The complaint charged that at the time of the accident the train was running across a street in the city of Greenfield at a "dangerous, reckless, and unusual rate of speed of fifty miles an hour over and across said street where a great many persons were passing and crossing." And appellant contends that the complaint thus "presents the cause of action upon the theory that the appellant was not in the habit of so running her trains, but that the rate of speed charged at the time of the accident was unusual."

We are of opinion that this is not a correct interpretation of the theory of the complaint. The negligence charged on this point is the running of the train over a street of a city, where many people were passing and crossing, at a dangerous, reckless, and unusual rate of speed of fifty miles per hour. That is, in effect, that fifty miles an hour, across a much frequented street of a city, is a dangerous, reckless, and unusual rate of speed. It is indeed a matter of common knowledge that such a rate of speed of trains in cities is extremely unusual, and always reckless and dangerous. We think that counsel for appellant misapprehended the force of the word unusual as used in the complaint.

We have found nothing in the able brief filed by appellant that would change the opinion already rendered. Indeed the verdict is amply supported without considering any of the evidence objected to.

The petition for a rehearing is accordingly overruled.