The Indianapolis, Decatur And Western Railway Company v. Wilson

• Decision Date: 16 March 1893
• Docket Number: 16,083
• Citation: 33 N.E. 793,134 Ind. 95
• Parties: The Indianapolis, Decatur and Western Railway Company v. Wilson, by Next Friend
• Court: Indiana Supreme Court

33 N.E. 793

134 Ind. 95

The Indianapolis, Decatur and Western Railway Company v. Wilson, by Next Friend

No. 16,083

Supreme Court of Indiana

March 16, 1893

From the Putnam Circurt Court.

Judgment reversed, with instructions to sustain the demurrer to the complaint.

R. B F. Peirce and A. L. Mason, for appellant.

S. A Hays, L. A. Barnett and J. T. Barnett, for appellee.

OPINION

Olds J.

This is an action by the appellee against the appellant for damages resulting from an injury alleged to have occurred at a highway crossing by reason of the negligence of the appellant.

There was a demurrer filed to the complaint by appellant for want of facts, which was overruled, and exception taken. Issues were joined, and a verdict and judgment were rendered in favor of appellee for $ 7,000. Appellant filed a motion for a new trial, which was overruled.

Errors are assigned that the complaint does not state facts sufficient to constitute a cause of action, and on the overruling of the demurrer to the complaint, and overruling the motion for a new trial.

The first question presented relates to the sufficiency of the complaint, it being contended by counsel for appellant that it shows contributory negligence on the part of the appellee.

While the complaint states that the appellee was nine years of age, it proceeds upon the theory that he possessed sufficient discretion to avoid the danger, and if he or his parents were guilty of contributory negligence, he can not recover.

It is well settled, by the decisions of this court, that it is sufficient to allege that the complaining party suing for damages resulting from an injury exercised due care, and the injury resulted from the negligence of the defendant, without any fault or negligence on the part of the injured person contributing thereto, unless it be clearly shown by other allegations in the complaint that the complaining party was guilty of negligence. Gheens v. Golden, 90 Ind. 427; Pittsburgh, etc., R. W. Co. v. Wright, 80 Ind. 182; Ohio, etc., R. W. Co. v. Walker, 113 Ind. 196, 15 N.E. 234; City of Wabash v. Carver, 129 Ind. 552, 29 N.E. 25; Pennsylvania Co. v. O'Shaughnessy, Admr., 122 Ind. 588, 23 N.E. 675.

The complaint in this case alleges that the injury occurred at a highway crossing; that the appellant's servants negligently cut the engine loose from a moving train, and ran the engine in advance, leaving the train to follow across the highway without any person to give warning of its approach, and that the appellee was not guilty of negligence; but it alleges that the appellee on foot stood and watched the engine pass across the public highway, and, when it so passed, appellee started "across said track, not knowing or observing, and not having time or opportunity to know or observe, that a portion of said train had been" disconnected, and was following.

Why counsel inserted such an allegation in the complaint, we are not advised, but, being in the complaint, we must construe the complaint giving effect to such averment.

It appears by the averments of the complaint that the employees of the appellant operating a freight train upon appellant's railroad, before crossing a public highway detached the engine from the train of cars, and ran the engine in advance of the train, allowing the train of cars to follow, running across the highway without being under the control of the engineer or other person. It does not appear how far distant from the crossing the engine was detached, or what distance apart the engine and cars were, or what time elapsed between the time the engine crossed the highway and the time when the front car in the train crossed it; nor is there any averments showing the situation surrounding the crossing, as to whether or not the view was obstructed. It is merely shown, by the averments of the complaint, that it was at a point where the railroad crossed a public highway, and that the engine was detached and run across the highway in advance of the train of cars, and the train of cars was allowed to run across the highway not under the charge or control of an engineer, brakeman, or other employee of the appellant. Then it is averred that appellee waited and observed the engine and cars attached to it, if any were attached, pass across the...