The Ohio And Mississippi Railway Company v. Heaton

• Decision Date: 28 November 1893
• Docket Number: 15,316
• Citation: 35 N.E. 687,137 Ind. 1
• Parties: The Ohio and Mississippi Railway Company v. Heaton
• Court: Indiana Supreme Court

35 N.E. 687

137 Ind. 1

The Ohio and Mississippi Railway Company v. Heaton

No. 15,316

Supreme Court of Indiana

November 28, 1893

Petition for Rehearing Overruled Feb. 15, 1894.

From the Washington Circuit Court.

The judgment is affirmed.

H. D McMullen and H. R. McMullen, for appellant.

J. A Zaring, M. B. Hottel, B. K. Elliott, and W. F. Elliott, for appellee.

OPINION

Howard, C. J.

The appellee filed his complaint against the appellant in the court below, claiming damages alleged to have been received by him while engaged as engineer on one of appellant's trains, by reason of the derailment of his train, due to a misplaced switch, caused by a defective switch-lock.

The appellant moved the court to require the appellee to make his complaint more specific in three respects, which motion was sustained as to the first two specifications, and overruled as to the third.

A demurrer to the complaint having then been overruled, the appellant answered in general denial.

The cause was tried by a jury, who returned a general verdict for the appellee, together with answers to certain interrogatories.

The appellant's motion for judgment on the answers to interrogatories, and also a motion for a new trial, were overruled.

Appellant thereupon objected to the jurisdiction of the court, by reason of an act of the General Assembly changing the times of holding said court. These objections were also overruled and judgment was entered upon the verdict.

The errors assigned and discussed in this appeal relate--

1. To the sufficiency of the complaint, and the overruling of the demurrer thereto, and of the motion to make more specific.

2. To the overruling of the motion for judgment upon the answers to interrogatories.

3. To the overruling of the motion for a new trial.

4. To the overruling of the objections to the jurisdiction of the court.

As to the sufficiency of the complaint, our statute, section 338, R. S. 1881, requires that the complaint shall contain, amongst other things, "A statement of the facts constituting a cause of action, in plain and concise language, without repetition, and in such manner as to enable a person of common understanding to know what is intended."

The complaint, so far as we need set it out, is as follows:

"That on the 3d day of September, 1887, plaintiff was a locomotive engineer, and was in the employ of the defendant in the capacity of a locomotive engineer, and had been in said employ for many years before that time, and on said day plaintiff was, as such engineer and in said employment, in charge of one of the defendant's locomotive engines, and was running it, with a freight train attached thereto, westward on said railroad through the county of Dearborn, in the State of Indiana; that at the city of Lawrenceburgh, in said county of Dearborn, there are switches and side tracks belonging to, and are a part of, said railroad; that in running said engine and train through to its destination, it was plaintiff's duty to keep on the main track of said railroad while passing through said city of Lawrenceburgh, and to not run said engine or train on any of said side tracks; that the switch target or sign indicated to plaintiff, when he was approaching said switch, that it was closed, and that he could and would pass safely along said main track; that said target was placed on an upright column or metal post, and the target, by turning it in a horizontal way, and it stood partly turned, but so little turned around that plaintiff could not, and did not, see that it was so turned while he was approaching it; that said switch is only opened and closed by the use of a lever that is held in its place by a lock belonging to and on said apparatus that supports the target, and it is the duty of said defendant to keep said target and target apparatus and lock in good repair, and in a safe condition.

"But the defendant had carelessly and negligently and wrongfully failed and neglected to keep said lock in good repair and in a safe and sound condition, but, on the contrary, for more than one month prior thereto, the defendant had negligently and carelessly used and suffered to be used, a lock, for opening and closing said switch, that was old, worn out, out of repair, broken, and unsafe, and could not, and did not, hold said switch, and by reason of said condition of said lock, said switch-iron railing was partly displaced by the wheels of trains passing over it; that the defendant, on said 3d day of September, 1887, knew, and for more than one month prior thereto had known, of said unsafe and dangerous condition of said lock, but negligently, carelessly and wrongfully failed and neglected to repair it, or to place a good and sufficient one in its place; that on said 3d day of September, 1887, plaintiff was running said engine, with a freight train thereto attached, as aforesaid, in a careful and skillful manner, and without any negligence on his part, towards said switch, and towards said city of Lawrenceburgh, and was, at the time, in said county of Dearborn, in the State of Indiana, and when he approached said switch he looked at said switch target and saw that it was set so as to indicate that said switch was closed, and that he could pass safely by the same and on and along said main line; that plaintiff was carefully and diligently watching said switch and target as he approached the same, and when he came to within twenty feet of said switch he, for the first time, discovered that it was partly open, and, to avoid danger, he instantly reversed said engine, and whistled the signal for down brakes, for the purpose of checking or stopping said engine and train, but before said efforts to check or stop said train could have any effect on the same, said engine had passed by said connecting point of said switch with the main track, and in passing said switch, by the insufficiency of said lock, as aforesaid, to hold the switch in its place, it gave way, and said switch was thrown open by the weight of said engine and by the wheels passing over it, and the engine and part of the freight cars of said train were, by reason of said defective and insufficient lock, derailed and thrown from said track, turned over and wrecked, and the plaintiff, without any fault or negligence or want of skill on his part, was caught in said wreck, and was thereby severely and dangerously injured, wounded, and bruised in his body and limbs, and was cut, bruised and lacerated on the left side of his head, extending from the temporal line to below the ear, and was also further cut, bruised and wounded, commencing at the middle of the ear and running down the cheek, and a large triangular piece of skin and flesh was cut and torn out, and left the bone exposed, and left a permanent impression and scar, and his hand and the fingers thereon were badly scalded, so that the abductor muscle had to be, and was, taken out, and cut off, and he was injured and wrenched in the spine, so as to produce partial paralysis, and his lungs were injured so as to produce permanent and injurious defects; that from said injuries he was made sick, sore, and languished therefrom, and was permanently injured and crippled for all the days of his natural life, and is rendered incapable of earning a living for himself and family, and has lost all of his time from his said business of locomotive engineer from the time he received said injuries until now, and he was compelled to spend, and did spend, three hundred dollars for physician's and surgeon's service and medicine in trying to cure himself from said injuries; that plaintiff received said injuries while in the line of his employment aforesaid, and in the line of his duty in said employment without any fault, carelessness or negligence on his part, and he had no knowledge whatever of the dangerous and defective condition of said switch and lock before he received said injuries; that by reason of said wrongs and injuries aforesaid, plaintiff has been, and is, greatly damaged, etc."

The complaint alleges a state of facts that show that the appellee was free from contributory negligence. It is, besides, expressly averred that he was without fault or negligence, and that he had no knowledge of the defective condition of the switch and lock.

Counsel for appellant indulge in much verbal criticism of the complaint; but we think that the statutory requirements are substantially observed in its composition, and that it is a plain statement of the facts constituting the cause of action, and in such manner as to enable a person of common understanding to know what is intended.

The evident theory of the complaint is that the injury to appellee was caused by the defective lock. The use of the lock was to hold the lever in the slot on the target, and thus hold the rails of the switch in their place; but, by reason of its defective condition, the lock did not hold the lever in the slot, and did not, therefore, hold the rails in their place, but allowed them to move and become displaced by the passage of trains over the track. Yet counsel find something absurd in the statement that "by the insufficiency of said lock, as aforesaid, to hold the switch in its place, it gave way, and said switch was thrown open by the weight of the engine and by the wheels passing over it."

A thin piece of steel, cut into a delicate key, may turn the bolt of a mammoth lock, which, in turn, shall hold the ponderous gate of a fortress. Small as the bit of steel is, it is yet the key to the fortress, and holds with ease what a thousand men could not maintain in position. So the lock in this case, as shown in the complaint, by holding the lever in its place upon the target, also holds the switch in position, and even...