The Cleveland, Cincinnati, Chicago And St. Louis Railway Co. v. Means
| Decision Date | 02 April 1914 |
| Docket Number | 8,086 |
| Citation | 104 N.E. 785,59 Ind.App. 383 |
| Parties | THE CLEVELAND, CINCINNATI, CHICAGO AND ST. LOUIS RAILWAY COMPANY v. MEANS |
| Court | Indiana Appellate Court |
Rehearing denied April 2, 1915, Reported at: 59 Ind.App. 383 at 412.
Transfer denied June 24, 1915.
From Superior Court of Marion County (82,554); Willard New, Judge Pro Tem.
Action by Hannah Means against The Cleveland, Cincinnati, Chicago and St. Louis Railway Company. From a judgment for plaintiff the defendant appeals.
Affirmed.
Frank L. Littleton, Leonard J. Hackney and Charles P. Stewart, for appellant.
Emrick & Deupree and B. F. Watson, for appellee.
This was a suit by appellee to recover damages for the death of her infant son, alleged to have been caused by appellant's negligence. A complaint and an answer of general denial presented the issues of fact. A trial by jury resulted in a verdict for appellee for $ 400. A demurrer to the complaint, a motion for a peremptory instruction, and a motion for a new trial were each overruled and these several rulings are each separately assigned as error, and relied on for reversal.
Appellee insists that appellant has waived the error, if any, resulting from the ruling on the demurrer to the complaint because of its failure to set it out in its brief. The brief states that "appellant demurred to the appellee's complaint on the ground that the same did not state facts sufficient to constitute a cause of action", and follows with a citation of the page and lines of the record where such demurrer will be found. It then states that "the demurrer to the complaint was overruled and appellant excepted to the ruling", and cites the page and lines of the record where such ruling will be found. This is a substantial compliance with Rule 22 of the Supreme Court and this court. The substance of the complaint, the ground of the demurrer thereto, and the ruling thereon, all being disclosed by the brief, the court has clearly before it the question which it is called on to determine, without reference to the record, and this is all that said rule, or any construction placed thereon by the Supreme Court or this court, contemplates.
The other rulings complained of present one and the same question. The complaint follows, as far as applicable, the complaint in the case of Indianapolis Water Co. v. Harold (1908), 170 Ind. 170, 83 N.E. 993, and is, we think, sufficient. In any event, it avers in terms favorable to appellee and her recovery, all the essential facts disclosed by the evidence, and the most serious question presented by the appeal is that of the sufficiency of the evidence to sustain the verdict. We therefore go direct to this question. The facts disclosed both by the complaint and the evidence about which there is little or no dispute, are in substance as follows: The appellant is a corporation organized under the laws of the State of Indiana, and owns and operates railroad lines therein. On August 10, 1910, and for a long time prior thereto, it owned and operated several of its lines of railroad in and through the city of Indianapolis, and owned and maintained switches in connection therewith, at all times, herein mentioned. One of the switches extended from a track laid in North Missouri Street in said city, formerly known as the main line of the Chicago division of defendant's railroad system, thence in a westerly direction on the south embankment of the canal of the Indianapolis Water Company to the manufacturing establishment of Love Brothers. Said switch track crossed West Street and Blackford Street, in said city. On said date, and for a long time prior thereto, the city maintained a public park, called Military Park immediately north of said canal, the park being bounded on the west by Blackford Street, on the east by West Street and on the north by New York Street. The park is situated in a densely populated part of the city and was at that time, and for years prior thereto had been attractive to the children in the immediate vicinity of the park as a playground, and during the summer and autumn months children congregated in great numbers in the park and the vicinity thereof to play. The southwest corner of the park was within seventy-five feet of the above described railroad track, or switch, at the point where the same crossed Blackford Street. On the afternoon of August 10, 1910, appellant had ten cars coupled together standing on the switch, one of which cars was within thirty feet of Blackford Street. Some of the cars were so placed for the use and benefit of the Acme-Myers Milling Company, located at the corner of the railroad track and Blackford Street. At the time herein referred to a number of said cars had been unloaded by the milling company, but quantities of wheat still remained in all of the cars and some of them were yet loaded with wheat. Wheat had leaked from the cars to the ground around and under the cars and near and on the track where the cars were standing. This condition, with the exception of the number of cars standing on the track, had existed for several years, and on August 10, 1910, and during all of said time prior thereto the wheat, on the track and in the unloaded cars, attracted and had attracted children from the park and its immediate vicinity, who played about the cars and track and collected and gathered up the waste wheat from the empty cars and from appellant's ground and tracks. In gathering the wheat, said children, at times, would be under and between the cars where a sudden movement of them would expose them to great danger. Appellant, on August 10, 1910, and for sometime prior thereto knew or by the use of reasonable diligence could have known of said facts. On the afternoon of said day, appellee's son, Joseph Minnehan, deceased, who was five years of age and living with appellee then a short distance from the park, was permitted by her to go to the park with an older brother twelve years of age. After the boys reached the park they with other boys were attracted and induced to leave the park and go upon the railroad track by seeing other children playing about the cars and gathering wheat thereunder. These boys, including decedent, proceeded to play and pick up and collect wheat under the cars to which there was at that time no engine attached. While the boys were so playing and gathering wheat from beneath and in said cars, and while said Joseph Minnehan was standing between the first and second cars from Blackford Street and about eighty feet from the street watching the other boys gathering wheat, at 2:30 p.m. on said day, appellant, in attempting to couple thereon, negligently and carelessly caused an engine pushing six cars to run against the ten cars standing on said track, and the impact caused the ten cars to move westward and thereby knocked decedent down on the rail of the track and further caused the second car to pass over him, amputating both his legs and one arm from which injuries he died. Appellant, before causing the cars to be moved, carelessly and negligently failed and neglected to give decedent or any of the boys any warning of any kind of their danger, although appellant knew that the condition of the cars placed upon the track, and the other heretofore described conditions, had induced and attracted boys to be at the place for several years prior to that day, and knew that children were gathering wheat and playing under and near the cars at the time, or by the use of reasonable diligence could have learned of the condition and facts and the danger to said Joseph Minnehan, by reason thereof. Appellee did not know of the existence of the conditions heretofore described, or that decedent, on account thereof, had been attracted from the park, but believed during all the time, from the time she gave her consent for her said son to go to the park to play until she was notified of his said injuries that he was at the park. The day on which decedent was injured was unusually warm and the conditions aforesaid were naturally inclined to attract a child, and being without warning of danger, and of immature judgment, he was thereby attracted to his death. On account of his tender years said child was non sui juris, and incapable of appreciating the danger there was in being between the cars. Appellant caused the six cars to be pushed by the engine into said ten cars, knowing when it did so, that children were likely to be playing and gathering wheat at the place where the ten cars were standing, and without making any effort to discover whether children were playing and gathering wheat and without giving such children any notice or warning of the approach of such engine and cars.
Are these facts sufficient to show a liability on the part of appellant for the injury resulting in the death of appellee's child? Appellant answers no, and files a brief in support of such answer in which it cites numerous authorities, many of which give apparent support to its contention. Appellee makes an affirmative answer and furnishes a brief also well supported by authority. Our own investigation of the question convinces us that either party might have added materially to the number of authorities cited in support of the respective contentions. There is in these cases a great divergence of opinion and apparent conflict. However, it should be said, in this connection, that such apparent conflict, generally speaking, does not result from any different announcement of general principles ordinarily applicable and controlling in such cases, but, from the application made of such principles to the facts of the particular case, and in some instances, from the reasons given for applying or refusing to apply the particular general rule to the...
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