The Ohio And Mississippi Railway Company v. Craycraft

• Citation: 32 N.E. 297,5 Ind.App. 335
• Decision Date: 25 October 1892
• Docket Number: 583
• Parties: THE OHIO AND MISSISSIPPI RAILWAY COMPANY v. CRAYCRAFT
• Court: Court of Appeals of Indiana

32 N.E. 297

5 Ind.App. 335

THE OHIO AND MISSISSIPPI RAILWAY COMPANY v. CRAYCRAFT

No. 583

Court of Appeals of Indiana

October 25, 1892

From the Clark Circuit Court.

Case affirmed.

J. K Marsh and J. H. Stotsenburg, for appellant.

T. A Douglass, for appellee.

OPINION

NEW, J.

This is an action for damages. The appellee recovered judgment in the Clark Circuit Court against the appellant.

The complaint is in one paragraph, and, omitting the heading and signature, reads as follows:

"Plaintiff complains of the defendant, and says that defendant is a corporation duly organized under the laws of the State of and the owner of a railroad running into and through Clark county, State of Indiana, and says that the defendant on the 31st day of May, 1889, without any fault or negligence on plaintiff's part, carelessly, negligently and wrongfully ran its train over and upon the defendant's brown horse mule, in Clark county, whereby he was then and there killed to the damage of the plaintiff one hundred dollars, for which he demands judgment and other proper relief. The appellant moved the court in writing to require the appellee to make his complaint more specific, definite and certain in regard to the charge of negligence and carelessness. The motion was overruled and to this decision the appellant excepted, and said motion, decision and exception were properly made a part of the record by a bill of exceptions.

Appellant then demurred to appellee's complaint, alleging that the facts stated were not sufficient to constitute a cause of action, which demurrer was overruled and appellant excepted.

Appellant then answered by a general denial of each and every allegation in appellee's complaint, and upon issues thus joined the cause was tried by a jury and a verdict returned in favor of the appellee, assessing his damages in the sum of one hundred dollars.

Appellant moved the court in writing for a new trial, which motion was overruled, and to this decision the appellant excepted. Judgment was rendered on the verdict, from which judgment this appeal is prosecuted.

The appellant has assigned the following errors in this court:

1st. The overruling of appellant's motion to make the complaint more specific.

2d. In overruling appellant's demurrer to the complaint; and,

3d. In overruling appellant's motion for a new trial.

We will consider the errors in the order of their assignment, the first being, did the court err in overruling the appellant's motion to make the complaint more particularly state the negligence or carelessness complained of? We think there was no error committed by the court in this ruling. The language of the complaint is "that the defendant on the 31st day of May, 1889, without any fault or negligence on plaintiff's part, carelessly, negligently and wrongfully ran its train over and upon the defendant's brown horse mule."

This, we think, certainly indicates very clearly the particular act of negligence or carelessness complained of. It was the careless and negligent running of the train over and upon the said mule.

It will be seen at once that said language is not the general allegation of negligence, but it goes farther and states the particular negligence, viz: the running of the train. This, we think, was sufficient, as the appellee would not be expected to know the exact manner the engineer or others in charge of said train operated the same.

The language used in the complaint in this case is a sufficient allegation of the particular act of negligence complained of to withstand a motion to make more specific. In the case of Cincinnati, etc., R. R. Co. v. Chester, 57 Ind. 297, the Supreme Court recognize the language here used as being sufficient, or as being a specific allegation of negligence.

We quote that part of the opinion referred to: "The general charge of the negligence and carelessness of the appellant was made and repeated again and again in appellee's complaint, but in no instance was this general charge predicated upon any alleged act of the appellant, either of commission or omission, what the appellant did or omitted to do, of which it could be said that it was done or omitted to be done, through the fault, negligence or carelessness of the appellant, the appellee has failed to allege in his complaint.

Had the appellant negligently and carelessly constructed its line of railroad? or had the appellant negligently and carelessly suffered its line of road to get and remain in bad repair and in an unsafe condition? or, again, had the appellant's employees negligently and carelessly run its train of cars over its road? or in what did the carelessness and negligence of the appellant consist, of which the appellee complained?"

Thus it will be seen that to allege that the appellant negligently and carelessly run its train over the appellee's mule, causing the damage, is a sufficient allegation.

The next question presented is the overruling of appellant's demurrer to the complaint. The court properly overruled said demurrer. A complaint to recover for personal injury or damage to property is sufficient to withstand a demurrer, where it charges the act which resulted in the injury as having been carelessly and negligently done, without alleging the specific acts constituting the negligence. Cleveland, etc., R. W. Co. v. Wynant, 100 Ind. 160; Kessler v. Leeds, 51 Ind. 212; Cincinnati, etc., R. R. Co. v. Chester, supra; Duffy v. Howard, 77 Ind. 182; Louisville, etc., R. W. Co. v. Jones, 108 Ind. 551, 9 N.E. 476.

We have carefully examined the instructions given by the court, and find that they were extremely clear and charged the law in the case fully. Counsel for appellant particularly call our attention to instructions four and five, offered by appellant and refused by the court, and insist that the court erred in refusing to give the same to the jury with other instructions given by the court. These instructions are as follows:

4th. "If the plaintiff knowingly and consentingly permitted his mule to habitually run at large in the immediate vicinity of the place where it was killed by defendant's train, he is himself not free from negligence, and is not entitled to recover in this action."

5th. "The jury are instructed that the plaintiff can not recover damages in this case for the mule killed if the evidence shows that the mule was at large upon the streets of the city of Jeffersonville at the time it was killed notwithstanding it had escaped from the control of the plaintiff without his fault, unless the board of commissioners had, by proper order, authorized...