The Pittsburgh, Cincinnati, Chicago and St. Louis Railway Co. v. Burton

• Decision Date: 17 April 1894
• Docket Number: 16,364
• Citation: 37 N.E. 150,139 Ind. 357
• Parties: The Pittsburgh, Cincinnati, Chicago and St. Louis Railway Company v. Burton, Administratrix
• Court: Indiana Supreme Court

37 N.E. 150

139 Ind. 357

The Pittsburgh, Cincinnati, Chicago and St. Louis Railway Company v. Burton, Administratrix

No. 16,364

Supreme Court of Indiana

April 17, 1894

Reported at: 139 Ind. 357 at 380.

From the Cass Circuit Court.

The judgment is affirmed.

N. O Ross and G. E. Ross, for appellant.

J. C Nelson, Q. A. Myers, S. T. McConnell and A. G. Jenkins, for appellee.

OPINION

Hackney, J.

The appellee, as administratrix of the estate of her deceased husband, Thomas S. Burton, sued to recover damages for negligently causing the death of said Thomas at the crossing of the appellant's railway and Center street, in the incorporated town of Royal Center.

The complaint alleges that the deceased, while attempting to cross said railway in his buggy, approached the crossing from the east on said street and drove his team in a slow walk and looked and listened, but "was unable to see or hear any engine or train of cars in motion on account of the obstruction of his view by cars and trains of cars then and there standing upon the side tracks, which the said defendant had then and there negligently permitted to be and remain there; and on account of adjacent buildings and fences that intervened."

In addition to the allegation of negligence in obstructing the view by cars, it was alleged that the appellant negligently failed to give any signal or warning of the approach of its engine and train, by sounding the whistle or ringing the bell in the manner and within the distances from said crossing, as required by law as to such signals, and that its train was negligently run at the rate of fifty miles an hour upon said crossing and against the buggy and team driven by the deceased, and in the collision thereby the said Thomas was killed. The allegation of noncontributory negligence by the deceased is repeated as to each charge of negligence against the company and as to all of the occurrences generally.

Two objections are urged against the complaint; first, that it is not alleged that plaintiff, the widow, was free from fault, and, second, that the allegation that the deceased was "unable to see or hear any engine or train of cars in motion on account of" said obstructions, was not equivalent to the fact that he could not or did not see or hear the train before going upon the track.

As sustaining the first of these objections are cited Louisville, etc., R. W. Co. v. Boland, 53 Ind. 398, and Sullivan v. Toledo, etc., R. W. Co., 58 Ind. 26.

The first was a case involving a claim for the destruction, by fire, of certain buildings, and the ordinary rule was applied in holding that the owner was required to allege that he was free from negligence contributing to the loss.

The second was an action to recover for the negligent killing of a minor child, and it was held necessary to allege that the father, who sought to recover, was guilty of no negligence contributing to the death of the child. One's property and his minor children are subjects of his care and control, and, as in agencies, he is responsible for their conduct and entitled to their services. Not so with the wife; her husband is not, legally speaking, subject to her control and the right of action accruing to her or to his estate is that which he might maintain if living. If living and prosecuting the action for his own personal injuries, his contributory negligence alone, and not that of his wife, would defeat the action; that relationship does not exist between the husband and wife which imputes the negligence of one to the other; especially is this true where the one sues in the right of the other, as in this case.

The case of the Indiana Mfg. Co. v. Millican, Admr., 87 Ind. 87, holds that in an action by an administrator it is not necessary to negative contributory negligence by the administrator. The fact that the widow administers is no reason for a distinction in the rule, and if the distinction could be maintained and the rule carried to its logical conclusion every complaint by an administrator would be required to negative the contributory negligence of each person interested in the recovery sought. The doctrine of imputed negligence in such cases was expressly repudiated in Miller, Admr., v. Louisville, etc., R. W. Co., 128 Ind. 97, 27 N.E. 339; Louisville, etc., R. W. Co., v. Creek, Admr., 130 Ind. 139.

As to the second objection to the complaint, the appellant admits that if the allegation so objected to had been omitted, the general allegations of freedom from contributory negligence would have made the complaint sufficient.

We are aware of the rule that where the facts pleaded show contributory negligence, the general negative allegation will not be sufficient, but the facts here specially pleaded, while, if not entirely sufficient of themselves to show every precaution required of one crossing a railway, they do not preclude the existence of further facts, and do not purport to set forth in detail all that he did to discover the approach of a train. In other words, we do not understand that a specific allegation will control the general allegation where the specific allegation does not appear to include all of the occurrence and stand in conflict with that otherwise embraced in the general allegation. Warbritton v. Demorett, 129 Ind. 346, 27 N.E. 730.

But, aside from this, we can not agree with counsel that an allegation that the decedent "was unable to see or hear," is less than that he could not or did not see or hear. If he was unable to, he could not; if he was unable to, he did not.

We conclude that the complaint was sufficient against the objections urged.

The jury trying the cause returned a special verdict, and thereupon the appellant moved the court "to require the jury to retire to their jury room and make a finding in their verdict of how far the decedent could have seen a train approaching * * when he was across the easterly side track and thirty-five feet distant from the main track."

The appellant now complains that the court erred in overruling this motion.

It is not the object of the special verdict that it shall return the weight of the evidence upon every question about which witnesses testify. The facts in issue under the pleadings are required, and not the abstract questions of evidence or evidentiary details. Whitworth v. Ballard, 56 Ind. 279.

The jury did find that "when he had passed the west side of the defendant's car that stood in the said Center street as aforesaid, he looked north and saw the defendant's train approaching upon said main track from the north at a high rate of speed, to wit, at forty-five (45) to fifty (50) miles an hour, without sounding bell or whistle, when he instantly pulled vigorously upon his lines and endeavored to stop his horses that were, by that time, ten feet from defendant's main track, but that his team had, by this time, discovered the said approaching train, and become at once greatly frightened and unmanageable; that he exercised his utmost efforts to stop his team to keep them off defendant's track, but was unsuccessful; that finding he was unable to stop his team, he pulled vigorously upon his left line and struck his off horse and urged his team to turn to the left to escape a collision, but without success, and was struck by said moving engine and train and injured and killed."

If he used proper care up to the time he passed the car on the side track; if, when he had passed the standing car, he saw the train, and if, after seeing it, he did all that was possible to do to avoid collision, and we think this is the effect of the finding quoted, then the presence of a finding that the train was one hundred or one thousand feet from him when he first saw it would not be of controlling force against the conclusions of due care on the part of the deceased.

In the court's instruction numbered one, two forms of special verdict were submitted to the jury, with directions to take either or modify either, or write one for themselves to meet the facts as they might find them, and stated that they would "hardly be driven to this labor unless neither of the forms of verdict submitted * states the facts proved in the form you prefer to state them." This statement, it is insisted, was an intimation to the jury that they should adopt one form or the other.

We are unable to believe the language employed capable of the construction counsel give it. The instruction, when all of its parts are considered, was a plain direction that the jury could adopt either form or modify either form, or reject both and prepare a form to suit their finding, but that the labor of preparing a form would not be necessary if either form stated the facts as found. There is no complaint that this direction was not proper.

The second of the court's charges contained the following: "And if, on any material fact, the evidence is equal, so that there is no preponderance, you are not at liberty to find and state that fact in your special verdict."

Appellant insists that this was an error, and that where the evidence fails to preponderate in favor of an essential fact, the verdict should find expressly the nonexistence of that fact. To this insistence is cited Gulick v. Connely, 42 Ind. 134.

We do not understand the rule to be as counsel state it, nor do we understand the case cited to have so held. The duty of the court or jury stating the facts specially is not to state the failure of one who assumes the burden of an issue, but the failure to state the existence of the fact is equivalent to finding the nonexistence of the fact. A fact not found is a finding that the fact is not proven by a preponderance of the evidence. Brazil Block Coal Co. v. Hoodlet, 129 Ind. 327, 27 N.E. 741, and cases...