The Pennsylvania Company v. McCormack

• Decision Date: 05 February 1892
• Docket Number: 14,973
• Citation: 30 N.E. 27,131 Ind. 250
• Parties: The Pennsylvania Company v. McCormack, Administrator
• Court: Indiana Supreme Court

30 N.E. 27

131 Ind. 250

The Pennsylvania Company v. McCormack, Administrator

No. 14,973

Supreme Court of Indiana

February 5, 1892

Petition for a Rehearing Overruled April 9, 1892.

From the Bartholomew Circuit Court.

Judgment affirmed, with costs.

S Stansifer, for appellant.

F. T Hord, M. D. Ewing, G. W. Cooper and C. B. Cooper, for appellee.

OPINION

McBride, J.

William Riley was a brakeman, employed by the Pennsylvania Company. He was killed at Middle Creek Station, Jefferson county, and the appellee, as administrator of his estate, brought this suit to recover damages for his death.

The material averments of the complaint are as follows, omitting those merely prefatory or technical:

"At said station there is a switch used by defendant for switching trains and for storing and depositing freight cars, when necessary for the company, in the course of its business, to leave cars at such station. He avers that at the date hereinafter mentioned there was a box freight car standing on said switch, previously left by the officers and agents of defendant for the purposes of defendant.

Plaintiff avers that on or about the 28th day of July, 1888, William Riley was a servant in the employment of defendant as brakeman on a freight train run and operated by defendant over said line from Madison via Middle Creek Station to Columbus, Indiana. In making said trip, it became necessary to leave a car, which was a part of said freight train, at said Middle Fork Station, and to deposit said car on said switch.

He avers that a ladder is constructed on the side of said freight cars, to be used by brakemen in ascending and descending from the cars, and in coupling and uncoupling cars, and to ride on the same to open and close switches, and to give signals to his fellow-servants in the management of said train. And plaintiff avers that the said Riley, while acting as brakeman as aforesaid, and in the line and performance of his duty, while standing and riding on said ladder and giving directions, by motioning and signalling with his hand to the brakeman at the rear end of the train, to hold it until the switching could be performed at Middle Creek Station, and to enable him to open and close the switches when required, and while so standing, and in the performance of his duty, on the car on the main track of said defendant, which was in motion, the person of said Riley, without any fault or negligence on his part, came in collision with the end of said freight car standing on said switch at said Middle Creek Station, and he was then and there and thereby knocked from said ladder and car on the main track, on which he was standing, to the ground, and then and there and thereby killed.

Plaintiff avers that the death of said Riley was caused by the carelessness and negligence of defendant in maintaining its switch at said station too near the main track of said defendant, whereby sufficient space and distance could not be maintained between cars running on the main track and those standing on the switch to enable the servants of defendant to perform their duty with reasonable safety, and the switch of defendant was carelessly and negligently allowed to get and remain out of repair, and the deceased was thereby injured.

He avers that at the point where said Riley was killed the siding of said switch was but six feet and eight inches from the main track; the switch was constructed and maintained with the ties on the surface of the ground, with no ballast of sand, gravel or other material; the switch at said point was on a straight line, and not a curve, and the track of the switch should have been made level, or the siding next to the main track should have been raised so as to cause the cars to lean therefrom, but he avers that on account of the negligence of defendant the rail of the switch next to the main track was suffered and permitted by defendant to be and remain three inches lower than the opposite rail of the switch, thereby causing the said freight car standing on said switch to lean towards the main track. The freight cars on the main track and the car on the switch protruded some distance over the line of their several tracks, and reasonably sufficient space did not exist and could not be maintained between the cars passing on the main track and freight cars standing on said switch for the safe performance of duty by deceased at the point where he was killed, the space between said points being, to wit, about two feet.

He avers that deceased was never informed of the danger of said place or of the condition of said switch, and his back was to the place of danger at the time he was injured, giving signals to his co-employees, and in position to open the switch at said point as required in the performance of his duty, and he had no knowledge of the dangerous and improper condition of said tracks and switches.

He avers that the deceased was an inhabitant of Bartholomew county, and was twenty-seven years of age, and he left a wife, Fanny Riley, and a child one year of age, Charles Maurice Riley, who were dependent on deceased for support"

Counsel for the appellant filed a motion to require the appellee to make his complaint more specific, indicating sixteen particulars in which it was, according to his views, lacking in certainty and in sufficiency of averment.

The motion is long, and, the complaint being set out above, it is unnecessary to extend the limits of this opinion by copying the motion.

A demurrer to the complaint, on the ground that it did not state facts sufficient to constitute a good cause of action, was also overruled.

We will only say of the motion and of the demurrer that by the motion and the argument in support of it, the appellant insists that additional and specific averments should be added, showing that the deceased was free from contributory negligence, showing why he was, when killed, acting in the line of his duty; that he show by specific averments all of the facts connected with the transaction, with reasons showing why each act alleged to have been done by the decedent was within the line of his duty, and not negligent, and why each act of omission or commission charged against the appellant was negligent.

All of the precedents in this State sustain as sufficient the general averment that the party was without fault, unless the facts specially pleaded clearly show that he was guilty of contributory negligence. Among the cases are Ohio, etc., R. W. Co. v. Walker, 113 Ind. 196, 15 N.E. 234, and many others there cited.

The code prescribes that the complaint shall contain "A statement of the facts constituting the 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." Section 338, R. S. 1881, clause 2.

Good pleading does not require, nor will it justify adding to the statement of the material facts a statement of reasons or arguments to vindicate the pleader's opinion that the facts stated are sufficient to authorize a recovery. The facts stated also should be the material and ultimate facts, and not mere evidentiary facts.

The complaint might with more justice be criticized as containing unnecessary or redundant averments. It is averred, in substance, that the death of the decedent was caused by appellant's negligence in constructing and maintaining its switch too near its main track, not allowing sufficient space between for cars to pass each other, so as to enable its employees to perform their duties with reasonable safety; that the space between them was only six feet eight inches; that the rail on the inner side of the side-track, next to the main track, was three inches lower than its outer rail, the effect of which was to cause the cars thereon to lean toward the main track, and that this, with the distance which the cars on each track "protruded" beyond the lines of the tracks, did not allow sufficient space for the safe performance of duty by the deceased.

Coupled with the averments showing these facts are others, apparently irrelevant, and, so far as we can see, having no necessary connection with them. They might have been stricken out on motion, but the court did not err...