The Pittsburgh, Cincinnati And St. Louis Railway v. Bennett

• Decision Date: 28 November 1893
• Docket Number: 865
• Parties: THE PITTSBURGH, CINCINNATI AND ST. LOUIS RAILWAY COMPANY v. BENNETT, ADMINISTRATRIX
• Court: Indiana Appellate Court

35 N.E. 1033

9 Ind.App. 92

THE PITTSBURGH, CINCINNATI AND ST. LOUIS RAILWAY COMPANY v. BENNETT, ADMINISTRATRIX

No. 865

Court of Appeals of Indiana

November 28, 1893

Petition for a rehearing overruled Feb. 1, 1894.

From the Clarke Circuit Court.

Judgment reversed, at the costs of appellee, with instructions to sustain the motion for a new trial.

S Stansifer, for appellant.

L. A Douglass and W. D. Marshall, for appellee.

OPINION

LOTZ, J.

The appellee was the plaintiff below. She brought this action to recover damages for the death of her decedent, alleged to have been caused by the negligence of the appellant.

A demurrer was sustained to the first paragraph of her complaint.

The second paragraph charged in brief, that on the 12th day of April, 1891, the evening passenger train from Indianapolis, belonging to the defendant, was being carelessly and negligently run over its track in the city of Jeffersonville, at a place where Ninth street crosses Wall street, at a high rate of speed, to wit, forty miles per hour, and in violation of an ordinance of said city of Jeffersonville, which ordinance forbade the running of trains on said street at a greater rate of speed than four miles per hour; that while the decedent was passing on foot along and over said track and crossing, he was struck by said passenger train and killed, without any fault or negligence on his part, and solely on account of the negligence of the defendant; that the place where the decedent was passing along and over defendant's track when killed was a public street and crossing, and was traveled by a large number of persons at all times of the day and evening, which fact was well known to the defendant; that the decedent, while passing along and over said track, as aforesaid, looked and listened in the usual manner, and saw said train advancing close upon him at the very unusual and high rate of speed aforesaid, and being thus suddenly and unexpectedly confronted with imminent danger and peril was overcome, and, losing his presence of mind, was unable to escape in time to save his life; that if said train had been going at the usual and lawful rate of speed, decedent would not have been overcome with fright and would have seen said train in time to have avoided being struck; that said decedent left surviving him the plaintiff, his widow, and five children; that plaintiff has been duly appointed administratrix of his estate.

The third paragraph differs from the second, in that it avers that the usual rate of speed at which trains are run along said street is much less than forty miles per hour; that defendant had no watchman or flagman at said crossing, and failed and neglected to ring the bell or sound the whistle, or give any other signals of warning, when approaching said crossing; that the decedent looked and listened in the usual manner in time to have escaped from danger from a train moving along said track in the usual way and at the usual rate of speed. The allegation that "if said train had been going at the usual and lawful rate of speed decedent would not have been overcome with fright, and would have seen the train in time to have avoided being struck," is omitted. Otherwise the two paragraphs are alike.

A demurrer was overruled to each of these paragraphs. There was an answer in denial filed, a trial by jury, and verdict in favor of appellee in the sum of $ 1,000. A motion for a new trial was overruled, and judgment on the verdict followed.

The errors assigned are the overruling of the demurrers to the second and third paragraphs of complaint, and the overruling of the motion for a new trial. Each paragraph contains the general averment that the deceased "was struck and killed without any fault or negligence on his part, and solely on account of the negligence of the defendant."

It has often been decided that the averment that the plaintiff was without fault is of a technical character; and, as a matter of pleading, it makes the complaint good in that respect against all mere inferences of contributory negligence, unless the inference arises as a necessary legal conclusion from the facts stated. We do not lose sight of the rule that ordinarily the specific facts will control the general averment if they make it clear that there was contributory negligence. But so long as the specific facts do not force the legal conclusion that there was contributory fault, the averment that there was no such fault entitles the plaintiff to have it submitted to the jury as a question of fact whether or not there was such negligence. Town of Salem v. Goller, 76 Ind. 291; Pittsburgh, etc., R. W. Co. v. Wright, 80 Ind. 182; Evansville, etc., R. R. Co. v. Crist, 116 Ind. 446, 19 N.E. 310; Ohio, etc., R. W. Co. v. Walker, 113 Ind. 196, 15 N.E. 234, and cases there collected.

We are of the opinion that there are no special facts averred in either paragraph from which an inference of contributory negligence arises as a matter of law.

Each paragraph was sufficient to withstand the demurrer. It is contended that the evidence wholly fails to sustain the verdict, and that it was the duty of the court to have given appellant's peremptory instruction directing a verdict in its favor.

The evidence shows that Eighth street, Ninth street, Tenth street, and Eleventh street, are streets of the city of Jeffersonville, whose general course extends from the northeast to the southwest in the order named, beginning at the south; that Walnut street, Locust street, Wall street, Spring street and Ohio street are platted streets of said city, whose general course extends from the northwest to the southeast and in the order named, beginning on the east.

All of said streets were platted and dedicated to the public use in the year of 1839, and have ever since continued to be public streets of said city; that all of said streets intersect and cross each other in the order named, except Ohio street, which extends only so far north as Spring street. Appellant's railroad track enters said city from the north and curves southwesterly by a point known as North Tower, crosses Locust street north of Ninth, and enters upon Ninth street between Locust and Wall, and continues thence westward near the center of said Ninth street until after it crosses Spring and Ohio streets. Immediately west of Spring and Ohio streets are situated the appellant's passenger station and platforms. From Spring street eastwardly to and beyond Wall street, the railroad track is on an embankment some six or seven feet above the natural surface of the ground. This embankment was constructed by the railroad company. On the embankment south of the track, there is a beaten, footway about five feet wide, beyond the ends of the cross ties, and on the north side another footway not quite so wide. At the Wall street crossing, the south side footway is slightly sunken, caused by the use and wearing away of two paths up the slope of the embankment, which paths turn, one to the east and one to the west. The embankment on Ninth street had long been much used by the public as a footway, both on the sides and on the track, and was the most convenient and desirable way for the public in passing from the east to the west, and vice versa, at this point in the city. There are ditches on both sides of the embankment, and vehicles can not cross, and foot passengers are compelled to climb the embankment in crossing said street. Ninth street has never been improved and graded by the city. The common council of said city granted to the railroad company the right of way for the purpose of locating its track and operating its trains thereon; the ordinance conferring such rights, limited the speed of trains to four miles per hour, forbidding the blowing of the whistle but requiring the bell of the engine to be rung while the same should be in motion or about to start. The ordinance also required the railroad to be constructed on the grade of the street, when such grade should thereafter be established by the city. The view from Spring street to North Tower was unobstructed. The distance from Spring to Wall street is 426 feet; from Wall street to where the railroad leaves Ninth street, 230 feet; from Wall street to North Tower, 930 feet, and from Spring street to North Tower, 1,384 feet. The railroad track, as it approaches Ninth street from the east, is on a down grade of about five feet in one thousand. The schedule time of the train at North Tower was 7:19 P. M., and at the passenger station at 7:20 P. M. The train was running nearly on its schedule time, the evidence as to the usual rate of the train at this place varies from fifteen to forty miles per hour.

Benjamin Bennett, the deceased, was a carpenter and house painter by vocation. He had never worked on a railroad, and had no knowledge of the speed and movements of trains.

On the evening of April 12, 1891, shortly before the train arrived at the passenger station, he was at the platform of said station engaged in conversation with a friend. The train came round the curve with the headlight burning and the cars lighted. Just after the train passed Wall street the deceased was found dead, his forehead was crushed, his face cut, and his shoulder broken or dislocated. There were no marks of injury on his person below the shoulders. His body, when found, lay a few feet east of the center of Wall street on the south side, and nearly parallel with the track, the head to the east.

No witness testified to seeing the train strike the deceased. The only evidence for the appellee, touching the immediate preceding whereabouts of the deceased or of his condition or what he was doing, is that of one witness who saw him standing on the Spring-street-station platform. This...