The Ohio and Mississippi Railway Co. v. McDaneld
| Decision Date | 13 September 1892 |
| Docket Number | 331 |
| Citation | 31 N.E. 836,5 Ind.App. 108 |
| Parties | THE OHIO AND MISSISSIPPI RAILWAY COMPANY v. MCDANELD |
| Court | Indiana Appellate Court |
From the Clark Circuit Court.
Judgment reversed.
J. K Marsh, for appellant.
A Dowling, for appellee.
The appellant's motion to require the appellee to make his complaint more specific was overruled. Such a motion must be brought into the record by bill of exceptions or by special order of the court. Thomas v. Griffin, 1 Ind.App. 457, 27 N.E. 754; Elliott App. Proc., sections 190, 191, 814.
A bill of exceptions relating to this ruling was filed, but it does not contain the motion. It is said in the bill that the "motion was in writing, and filed in open court, and reads as follows, to wit (heretofore set out in this record, on pages 3 and 4)." On the pages of the transcript to which reference is thus made, there is such a written motion; but a written instrument, which is not a proper part of the record, can not be brought into the record by a bill of exceptions without incorporating it in the bill. Crumley v. Hickman, 92 Ind. 388; Board etc., v. Karp, 90 Ind. 236.
A demurrer to the complaint was overruled.
The complaint, after its preliminary averments, alleged that, on, etc., in the night time, the appellee, with a wagon and horse, of the value of, etc., and a set of harness, of the value of, etc., all being the property of the appellee, was carefully driving along a certain public highway, known as the dirt road, which crosses the appellant's railroad near the town of Watson, and as the appellee reached said crossing, the appellant caused one of its locomotives and a train of cars to approach said crossing and pass rapidly over the track of said railroad; that said train was backed toward and over said crossing, and the appellant negligently and carelessly omitted, while so approaching said crossing, to give any signal by bell or whistle, or otherwise; that before crossing said railroad track, the appellee stopped his horse and looked and listened, but, on account of the negligence of the appellant, he neither saw nor heard any train approaching; and by reason of said negligence, and without any fault or negligence on the part of the appellee, one of the cars of said train struck his said wagon and horse, then crossing said track, thereby greatly bruising and injuring said horse, and breaking said wagon and harness, and throwing the appellee with great violence to the ground, bruising and injuring him, etc., to his damage, etc.
It scarcely need be said that a complaint may be open to criticism for want of certainty, so that a motion to require it to be made more specific should be sustained, and yet may be sufficient on demurrer. Whether this complaint might properly be so criticized or not we need not inquire. If the particular averments relating to the care taken by the appellee would not be sufficient of themselves, they do not show that he was chargeable with contributory negligence, and are not inconsistent with the general allegation of the absence of fault or negligence on his part. Chicago, etc., R. R. Co. v. Nash, 1 Ind.App. 298, 27 N.E. 564.
The complaint shows that the appellee and his property, without his fault or negligence, were injured by the negligence of the appellant in a specified omission. It presented a cause of action. George H. Hammond & Co. v. Schweitzer, 112 Ind. 246, 13 N.E. 869; Town of Rushville v. Adams, 107 Ind. 475, 8 N.E. 292; Boyce v. Fitzpatrick, 80 Ind. 526.
The appellant's motion for a new trial was overruled. In discussing this ruling counsel for the appellant contend that there was what they call a fatal variance; that the facts stated in the complaint were not proved, but that a different state of facts was shown by the evidence.
It appeared in evidence that the collision occurred after dark on a cloudy, misty evening; that an engine with two cars attached behind it backed from the main track into a side-track, where four other cars were coupled to the train; that the six cars were drawn by the locomotive out upon the main track; that the locomotive then ran backward, pushing the six cars along the main track toward the highway crossing; that at a point about eighteen hundred feet from the crossing the four cars, with one brakeman upon them, were detached and allowed to continue to run upon a down grade to and beyond the highway crossing; that the locomotive then backed the two cars upon the side-track and left them there, and came out upon the main track, and, running backward, followed the four cars, reaching the crossing some minutes after the collision.
The statute, section 4020, R. S. 1881, providing that when a locomotive engine approaches a highway crossing, and is not less than eighty nor more than one hundred rods from it, the whistle on the engine shall be sounded and the bell attached to the engine shall be rung continuously thereafter until the engine shall have fully passed the crossing, is not applicable by its terms to a train of cars without an engine. Of course, it is impossible for persons in charge of a train without an engine to sound an engine whistle or to ring an engine bell.
That the omission of the signals so required by statute is actual negligence is so well settled that the citation of authorities can not be needed. It is not to be left to the jury to determine whether or not such omission is negligence; it will be declared by the court, as a matter of law, to be negligence.
Allowing cars without an engine attached to proceed alone over a highway crossing has the elements of danger to travellers upon the highway which pertain to a running or flying switch. Chicago, etc., R. R. Co. v. Dignan, 56 Ill. 487.
In Pennsylvania Co. v. State, etc., 61 Md. 108, making a running switch is characterized as the grossest negligence.
"To cut loose and send such a dangerous train into a city, across and along public thoroughfares, silent in its approach and dangerous in its force, seems to be a high degree of...
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