The Louisville, New Albany And Chicago Railway Co. v. Jones

• Decision Date: 14 December 1886
• Docket Number: 11,948
• Citation: 9 N.E. 476,108 Ind. 551
• Parties: The Louisville, New Albany and Chicago Railway Company v. Jones
• Court: Indiana Supreme Court

9 N.E. 476

108 Ind. 551

The Louisville, New Albany and Chicago Railway Company v. Jones

No. 11,948

Supreme Court of Indiana

December 14, 1886

Petition for a Rehearing Overruled Feb. 24, 1887.

From the Lawrence Circuit Court.

Judgment affirmed, with costs.

G. W Friedley, G. W. Easley and W. H. Russell, for appellant.

M. S Mavity, W. J. Throop, M. F. Dunn, R. Hill and R. N. Lamb, for appellee.

OPINION

Zollars, J.

It is alleged in appellee's complaint, that in June, 1882, appellant was the owner of a railroad, and engaged as a common carrier, in transporting passengers over the same for hire; that in that month she purchased a ticket from its agent at Orleans, in this State, by virtue of which, the consideration paid therefor, and the contract and agreement made by appellant, she became entitled to be safely and securely carried from Orleans to Greencastle Junction; and that possessing the ticket so purchased, and in pursuance of the agreement of appellant, she went upon one of its regular passenger trains at Orleans, and into a passenger coach forming a part of that train, to be carried from that station to Greencastle Junction.

That portion of the complaint which alleges appellee's injuries, and charges appellant with negligence, is as follows:

"And the said defendant ran its said train carelessly and negligently, at a high, unusual, and dangerous rate of speed, to wit, at the rate of fifty miles an hour. That said rate was not only dangerous on said road, to the life and limbs of all the passengers on said train, but that said train was thus carelessly, negligently and rapidly run on a down grade, without applying the brakes as should have been done, and over a defective and insufficient track, and over defective and insufficient rails, and over rails not properly spiked to the cross-ties, and over decayed, rotten and defective cross-ties, and over curves not properly elevated. And said defendant carelessly and negligently ran said train at said high and dangerous rate of speed, by pulling the same with a defective and insufficient locomotive, and with a locomotive that was not suitable for, and sufficient to draw a passenger train, at such high rate of speed, by reason of all of which acts of carelessness and negligence on the part of said defendant, so done and committed, and without any fault or negligence on the part of this plaintiff, said cars were, at and in the said county of Lawrence, and State of Indiana, by said defendant, its agents and employees, so carelessly and negligently run and managed as to throw said train and the locomotive thereto attached from said road, down a high embankment, among the trees and bushes, and against the ground, suddenly, while running at the high rate of speed aforesaid, and turned the car in which plaintiff was over on its side. And the plaintiff avers that by reason of said sudden and immediate derailment, and by the turning of said car on its side, and without any fault or negligence on her part, and while she was in her seat in the said coach, where she had a right to be, she was suddenly carried over said embankment, with said coach and train, thirty or thirty-five feet, among said trees and bushes, and against the ground aforesaid; that by reason of said great speed, and the derailment and turning over of said coach, the plaintiff was hurled forward against the seat, and upon the cornice and braces of the top part of the said coach, and struck her head against said cornice and braces with great force, which shocked her, and rendered her insensible, and injured her head and eye; that by reason of the aforesaid high rate of speed, and by the overturning of the said coach, other passengers therein were thrown violently upon this plaintiff, without any fault or negligence of hers, and she was greatly injured by said passengers being thrown upon her, and by being thrown upon and against said cornice and braces aforesaid, and by all of which her right arm was strained and injured, her hips and spine injured, whereby she was partially paralyzed, and her body otherwise cut, bruised and wounded, from all of which she has ever since suffered, and does still suffer, great bodily pain and mental anguish, and that she is, in consequence of said injuries so received, permanently disabled and rendered unable to attend to her household duties, and rendered unfit for any kind of business pursuit, or the comfortable enjoyment of life or limb; that in addition to her great suffering and disabilities, she has been put to great expense for surgical and medical attendance, nursing and medicine, in and about the attempted healing of said injuries, and became liable for the necessary fees therefor. And the plaintiff says that in consequence of said careless and negligent acts of the said defendant, its agents and employees, and without any fault or negligence on her part, she has been permanently injured in body and mind, her constitution weakened, her eyesight impaired, her health impaired, and her happiness destroyed. Wherefore she demands judgment for ten thousand ($ 10,000) dollars."

Appellant's demurrer to the complaint was overruled. That ruling is one of the alleged errors upon which its counsel rely for a reversal of the judgment against it, in favor of appellee.

The main and general objections urged to the complaint by appellant's counsel are, that there is no averment that appellant, or its servants, were guilty of any careless act or omission in the actual running of the train; that there is no averment that the train left the track because of the curve, the insufficiency and imperfection of the locomotive, the rails, ties or track, nor that such insufficiency caused the injury, or contributed thereto.

In our own judgment, these objections, and others urged by counsel, have not such a basis upon which to rest, as requires a holding that the demurrer to the complaint should have been sustained.

The statute provides, that the facts constituting the cause of action shall be stated in the complaint in such a manner as to enable a person of common understanding to know what is intended. R. S. 1881, section 338. And that in the construction of a pleading, for the purpose of determining its effect, its allegations shall be liberally construed, with a view to substantial justice between the parties. R. S. 1881, section 376; Dickensheets v. Kaufman, 28 Ind. 251.

It is well settled, too, that a pleading must be taken as a whole, and construed according to its general scope and tenor. Fleetwood v. Dorsey Machine Co., 95 Ind. 491 (493), and cases there cited; Starret v. Burkhalter, 86 Ind. 439 (444).

Taking the complaint as a whole, the charges of negligence therein may be summarized as follows:

Appellant, by its agents and servants, carelessly and negligently used a defective locomotive, not suitable or sufficient to draw a passenger train at a high rate of speed; and using that locomotive, it carelessly and negligently ran the train at the dangerous rate of fifty miles per hour, and was guilty of carelessness and negligence in running the train at that rate, with the defective locomotive, upon a down grade, without applying brakes, and around a curve not properly elevated, and over defective and insufficient rails not properly spiked to the cross-ties, over decayed, rotten, and defective cross-ties, and over a defective and insufficient road-bed, by reason of all of which acts of carelessness and negligence on the part of said defendant, so done and committed, and without any fault * * on the part of plaintiff, the train was thrown from the track, and she was injured. The complaint closed with the averments that in consequence of said careless and negligent acts of appellant, its agents and employees, the plaintiff, without her fault, was injured, etc.

The complaint is not as specific and methodical as it ought to be, but we think it sufficient to withstand the demurrer directed against it, especially when we apply to it the rules of construction prescribed by the statute, and established by our decisions.

It is alleged specifically, that the train was run over decayed and rotten ties, but the specific facts showing the insufficiency of the locomotive, in what regard the curve was not properly elevated, in what respect the rails were defective and not properly spiked to the ties, and in what respect the road-bed was otherwise out of repair, are not stated.

The general allegations as to these matters might have been reached by a motion to have the complaint made more specific, but the complaint is not necessarily bad, as against a demurrer, because the allegations are thus general. Cincinnati, etc., R. R. Co. v. Chester, 57 Ind. 297; Jones v. White, 90 Ind. 255; Cleveland, etc., R. W. Co. v. Wynant, 100 Ind. 160; Louisville, etc., R. W. Co. v. Krinning, 87 Ind. 351 (352); Boyce v. Fitzpatrick, 80 Ind. 526.

Whatever might be said of it, as an original proposition, under our later statutes, it is settled as a rule of pleading and practice in this State, in cases such as this, that it is sufficient to withstand a demurrer for want of facts, to characterize an act as having been negligently or carelessly done, and that under such an allegation, the facts constituting the negligence may be given in evidence. Cleveland, etc., R. W. Co. v. Wynant, supra; Jones v. White, supra; Louisville, etc., R. W. Co. v. Krinning, supra; Boyce v. Fitzpatrick, supra; Cincinnati, etc., R. W. Co. v. Gaines, 104 Ind. 526 (54 Am. R. 334, 4 N.E. 34); Wabash, etc., R. W. Co. v. Johnson, 96 Ind. 44.

As we have said, the complaint is not as specific and methodical as the rules of good pleading require, but looking to all the averments therein, and giving to them a fair construction, it...