The Pennsylvania Company v. Sears

• Decision Date: 10 May 1893
• Docket Number: 14,971
• Parties: The Pennsylvania Company v. Sears
• Court: Indiana Supreme Court

34 N.E. 15

136 Ind. 460

The Pennsylvania Company v. Sears

No. 14,971

Supreme Court of Indiana

May 10, 1893

Reported at: 136 Ind. 460 at 476.

From the Allen Circuit Court.

The judgment is affirmed.

A Zollars, J. Morris and J. Brackenridge, for appellant.

L. M Ninde and H. W. Ninde, for appellee.

OPINION

McCabe, J.

Appellee sued appellant, a railway company, for a personal injury resulting from the alleged negligence of the appellant.

Trial by jury, verdict for appellee, upon which judgment was rendered over a motion for a new trial.

The errors assigned here and not waived by failure to argue the same are, the overruling of appellant's demurrer to the appellee's complaint, and the overruling of appellant's motion for a new trial.

The material allegations of the complaint are as follows:

"That for the last ten years the defendant has possessed and operated the Pittsburgh, Fort Wayne and Chicago Railroad, extending from Pittsburgh, in said State of Pennsylvania, through the city of Fort Wayne, Indiana, to Chicago, Illinois.

"Plaintiff further avers that from the 16th of November, 1887, to the 8th of May, 1888, inclusive, he was employed by the defendant as brakeman on the division of its said road between said Ft. Wayne and the city of Chicago; that on said 8th day of May he left Chicago as brakeman on the defendant's train, No. 76, for said Ft. Wayne. And the plaintiff avers that between the town of Wheeler and the city of Valparaiso, in said State of Indiana, the defendant for the period of, to wit, five years last past has carelessly, negligently, and recklessly maintained an unlawful and dangerous overhead bridge over its said railroad, and unlawfully, carelessly and negligently maintained said bridge so low that when a brakeman passed thereunder standing upon a refrigerator car or other highest cars used by the defendant on its said road, his head would come in contact with and strike against said bridge, and the plaintiff further avers that although the defendant so unlawfully, carelessly and negligently maintained said bridge in a dangerous condition, as aforesaid, yet it carelessly, negligently and unlawfully failed, neglected, and refused to keep proper, suitable, and safe guards up at either side of said bridge in such a position or of such a kind or character as would, with reasonable safety, caution or warn brakemen upon its train that they were approaching and about to pass under said bridge, and the defendant during said period also carelessly, negligently and unlawfully neglected and refused to keep proper, safe and suitable lights or lamps upon said bridge in the night time to notify or warn brakemen upon its freight trains of the presence of said bridge and of their approach thereto.

"And plaintiff avers that, to wit, on said 8th of May, in the night time, while it was dark, he was engaged as such brakeman by the defendant on its said train, No. 76, in running said train eastward upon said road and under said bridge so negligently maintained, as aforesaid, and upon and about which bridge the defendant negligently and carelessly failed at the time said plaintiff was approaching and passing said bridge upon said train, as aforesaid to keep, place, or have any lights upon or about said bridge to warn or notify him that he and said train were approaching and about to pass said bridge; and the defendant also negligently and carelessly, neglected, failed and refused at the time the plaintiff was approaching said bridge and about to pass the same as aforesaid upon said train to place or keep upon or near said bridge any suitable or proper guards or ticklers to give the plaintiff notice that he was approaching or about to pass said bridge, and he avers that after said train passed said town of Wheeler he was diligently and carefully engaged in his duties as such brakeman, and without any fault or lack of care and due diligence on his part, and without any knowledge on his part that he was approaching and about to pass under said bridge, said train, upon which he was so diligently, carefully and faithfully braking as aforesaid, ran past and under said bridge, and carried the plaintiff, without any fault whatever on his part, under and against said bridge, and whereby, and without any fault on his part, his head was brought in collision with said bridge above said train, and his head collided with said bridge above said train with great violence whereby his skull was fractured, his head and face were bruised, mangled, and crushed, and his lip cut through and greatly injured, and whereby he became and was insensible and helpless, and his shoulder, neck, and body became and were bruised and greatly injured, and whereby he was thrown to the ground upon said railroad track, and the cars ran over him and crushed his leg from his foot to his thigh so that it became necessary to amputate the same, which was done, by means of which injuries he became sick, sore and distressed, and suffered great pain and anguish, both mentally and physically, and his life was for a long time, to wit, for six months, despaired of, and he became, and was and is, wholly disabled from ever again following his business or profession, and from ever again earning his living, and he was compelled to lay out and expend, to wit, $ 500 in nursing, medicines, and medical and surgical attendance in being treated for said injuries, and he avers that he was so injured as aforesaid without any fault whatever on his part; that he had not, at or before he was so injured, any knowledge or notice whatever that said bridge was so low that it would come in collision with his head or any part of his body, or that it was low enough to touch him as he passed under the same. And he avers that all said injuries were caused by the negligence and carelessness of the defendant as aforesaid, to his damage in the sum of fifteen thousand dollars, for which he sues and demands judgment."

The first objection urged against this complaint is that it does not state what part of the train appellee was on when he was injured, and that it is not averred that he was standing on any one of the cars when his head came in contact with the overhead bridge.

If it was material or important to appellant to have a more specific statement as to the particular place in the train appellee occupied when the alleged injury occurred, the appropriate remedy was a motion to require greater certainty in that respect and not a demurrer for want of sufficient facts.

As to the other point, the complaint shows that on the 8th day of May he was engaged as brakeman for appellant on train No. 76 going east from Chicago, and after the same passed the town of Wheeler he was diligently engaged in his duties as such brakeman, and said train ran past and under said bridge, whereby his head was brought in collision with said bridge above said train. From this language we think it appears that the only place appellant could have occupied at the time the bridge came in contact with his head was on top of some one of the cars in that train. Whether it was a refrigerator or other highest car was not essential to the sufficiency of the complaint. It is fairly inferable from the complaint that it was only refrigerator cars and other highest cars that would not admit a brakeman to stand erect thereon and pass under said bridge in safety, and that all other cars would admit such passage.

Much useless verbiage in the complaint has obscured the statement of these facts to some extent, but not to the extent of destroying them.

The unavoidable conclusion to which the language employed leads, is that the ordinary cars in use on said road would admit such passage.

It is also claimed that the complaint is bad for the reason that it appears therefrom that appellee was not free from contributory negligence. The contention is, that as it appears from its averments that appellee was engaged for appellant as brakeman, from the 16th day of November, 1887, until the 8th day of May, 1888, he had ample opportunity of knowing all about the dangerous character of the bridge; and that, therefore, he assumed the risks of such employment.

The complaint "avers that from the 16th of November, 1887, to the 8th of May, 1888, inclusive, he was employed by defendant as brakeman on the division of its said road between Ft. Wayne and Chicago." What train he had been braking on during that time, whether freight or passenger, is not stated. If it was either material or useful to appellant's rights to have the complaint specify the particular train, the only remedy was a motion asking the trial court to require such specification, and not a demurrer for want of facts sufficient. No such motion was made.

It is afterwards averred in the complaint, that appellee had not, at or before he was injured, any knowledge or notice whatever that said bridge was so low that it would come in collision with his head or any part of his body, or that it was low enough to touch him as he passed under the same.

From this language, it clearly enough appears that he in fact did not know of the dangerous character of the bridge, and the demurrer admits that fact. Nor does it appear from the facts stated, that he might have known of such danger, because it does not appear that he was ever braking on a freight train for appellant prior to the occasion on which the alleged injury was received. And if that did appear, still there is nothing in the complaint to indicate that he had ever known of, or seen, "refrigerator or other highest cars" pass under said bridge, either with or without a brakeman standing thereon, or that any other facts existed within his knowledge to warn him of the dangerous character of the bridge. This analysis...