The Louisville, Evansville & St. Louis Consolidated Railroad Company v. Utz

• Decision Date: 22 December 1892
• Docket Number: 16,014
• Citation: 32 N.E. 881,133 Ind. 265
• Court: Indiana Supreme Court
• Parties: The Louisville, Evansville & St. Louis Consolidated Railroad Company et al. v. Utz, Administrator

32 N.E. 881

133 Ind. 265

The Louisville, Evansville & St. Louis Consolidated Railroad Company et al. v. Utz, Administrator

No. 16,014

Supreme Court of Indiana

December 22, 1892

From the Floyd Circuit Court.

Judgment affirmed.

A Dowling, for appellants.

M. W Funk, C. L. Jewett and H. E. Jewett, for appellee.

OPINION

McBride, J.

The appellee, as administrator of the estate of William P. Wood, deceased, sued to recover damages for the death of his intestate, who was killed while serving the appellant as a brakeman. This appeal is from a judgment awarding him damages. Three questions only are discussed, viz.: The sufficiency of the complaint, the sufficiency of the evidence, and the correctness of an instruction given.

So much of the complaint as is necessary to present the question argued is as follows: "On the 15th day of June, 1888, the said William P. Woods was engaged as such brakeman upon a moving freight train of defendant, running upon said line of railroad, near the station named Mentor, and while attempting to pass from the top of one car to another in the performance of his duty, the iron pin in the coupling of said cars suddenly broke and the coupling parted, and said cars suddenly separated, by reason of which said William P. Woods was precipitated with great violence from the top of said train to the track below, between the separated parts of said train, and was, by the rear part of said train, run over, wounded, crushed and killed.

"The plaintiff avers that the iron coupling-pin, which broke as aforesaid, was so worn by long use, and so weak, rusted and cracked as to be insecure and unsafe to use as a coupling-pin, and that the breaking and separation of the cars aforesaid, and the injury and death of said William P. Woods, were caused solely by the fault and negligence of the defendant in not providing a safe and suitable coupling-pin for the coupling of said cars; that said William P. Woods had no knowledge or notice of the unsafe or dangerous condition of the said coupling-pin, nor was the injury or death of said William P. Woods caused by any fault or negligence on his part, but solely by the negligence of the defendants as aforesaid."

The specific objection urged against the complaint is that "it fails to allege that the company knew, or had the means or opportunity of knowing, that the coupling-pin was defective."

The appellee contends that the question is not properly in the record, and that, even conceding that the complaint is defective, the appellant is not entitled to avail itself of any error that may have been committed by the trial court in overruling a demurrer to it. The suit was originally commenced against the Louisville, Evansville & St. Louis Railroad Company. That company appeared, demurred to the complaint, and the demurrer was overruled. The then defendant reserved an exception to this ruling. Subsequently it was properly shown to the court that that company, with certain other corporations, had been consolidated under the name of the Louisville, Evansville & St. Louis Consolidated Railroad Company, and the consolidated company was thereupon substituted as defendant. The appellee contends that the substituted defendant could not avail itself of any error that may have been committed in ruling on this demurrer. That if it wished to test the sufficiency of the complaint it should, after its substitution, have filed a demurrer, obtained a new ruling and reserved an exception.

By the act of consolidation, the several companies ceased to exist as separate entities. Their rights and franchises were merged in the new corporation, which thus succeeded to their several rights and liabilities. The consolidated company was rightfully substituted as the defendant, because it thus stood as the only representative of the former defendant, and was, in legal contemplation, itself that defendant, as it was also each of the other corporations uniting to form it. Indianapolis, etc., R. R. Co. v. Jones, 29 Ind. 465; Paine v. Lake Erie, etc., R. R. Co., 31 Ind. 283; Jeffersonville, etc., R. R. Co. v. Hendricks, 41 Ind. 48; Cashman v. Brownlee, 128 Ind. 266, 27 N.E. 560; Louisville, etc., R. R. Co. v. Summers, 131 Ind. 241, 30 N.E. 873.

It had the right to treat pleadings filed by the original defendant as its own, and to avail itself of all rulings made and of all exceptions reserved by such original defendant prior to the substitution, as fully as the original defendant might have done if there had been no substitution.

The objection to the complaint, however, is without sufficient foundation. Judged...