Wabash Railroad Company v. McDoniels
| Citation | 107 N.E. 291,183 Ind. 104 |
| Decision Date | 29 December 1914 |
| Docket Number | 22,056 |
| Parties | Wabash Railroad Company v. McDoniels, Administrator |
| Court | Supreme Court of Indiana |
Rehearing Denied March 25, 1915.
From Clinton Circuit Court; Joseph Combs, Judge.
Action by William McDoniels, administrator of the estate of John W McDoniels, deceased, against the Wabash Railroad Company. From a judgment for plaintiff, the defendant appeals.
Affirmed.
Edwin P. Hammond, William V. Stuart, Dan W. Simms, Allison E Stuart and Guenther & Clark, for appellant.
Edgar D. Randolph, Kumler & Gaylord and Kent & Ryan, for appellee.
This is an appeal from a judgment for $ 2,000 for the negligent killing of appellee's decedent. The questions presented by the assignment of errors are, (1) overruling demurrer to amended complaint; (2) overruling appellant's motion for judgment non obstante; (3) overruling appellant's motion for a new trial; (4) overruling appellant's motion in arrest of judgment; (5) sustaining appellee's motion for judgment on the general verdict.
This action is based on the alleged violation of a city ordinance of the city of Lafayette, approved and adopted, by said city on September 7, 1853, which provided and required, "That the person or persons managing any car or locomotive within the corporate limits of said city shall always be in a position to see persons or things on the railroad track ahead, or in front of the cars or locomotive; or shall keep some discreet person on the lookout, in a position where he can see persons or things on such track in front of said cars or locomotives, with power to stop such locomotive or cars at a moment's warning", and declared a failure to observe such ordinance to be unlawful, and fixed a penalty for the violation thereof.
It is contended by appellant, that the complaint is insufficient for the reason that at the time of the passage of the ordinance, the city of Lafayette had no authority, under the statute, to enact such ordinance. It is conceded by appellant that the act of June 18, 1852, entitled "An act for the incorporation of cities," was in force, but contended that the act, which contains 35 clauses, contains no provisions which would authorize cities to regulate the movement or operations of railroad trains or locomotives. It is insisted by appellee that the "general welfare" clause of the act is sufficient authority for the passage of the ordinance, and that the power to protect the lives and property of their citizens is an incidental and necessary one belonging to all municipal corporations, and is within their police powers. Subdivision 3, § 35, of said act is as follows: "To prevent or regulate the use of firearms, fireworks, or other sports, or other thing or practice tending to endanger person or property" 1 R. S. 1852 p. 210, § 35. Section 38 of this same act provides "The common council shall have power to make other by-laws not inconsistent with the laws of this State, and necessary to carry out the objects of the corporation." 1 R. S. 1852 p. 212, § 38. It was held by this court, that in the absence of express statutory authority, the enactment and enforcement of reasonable regulations of this character are recognized as a legitimate exercise of the police powers necessary to the safety of cities. First Nat. Bank v. Sarlls (1891), 129 Ind. 201, 28 N.E. 434, 28 Am. St. 185, 13 L. R. A. 481, and cases cited. It has been held by the courts of other states that ordinances of cities regulating the speed of railroad trains are police regulations, and therefore the power to pass such ordinances need not be given in express terms, but may be implied from the power of the city to abate nuisances and provide for the general welfare. Chicago, etc., R. Co. v. Haggerty (1873), 67 Ill. 113; Bluedorn v. Missouri P. R. Co. (1891), 108 Mo. 439, 18 S.W. 1103, 32 Am. St. 615; Jackson v. Kansas City, etc., R. Co. (1900), 157 Mo. 621, 58 S.W. 32, 80 Am. St. 650; Stotler v. Chicago, etc., R. Co. (1906), 200 Mo. 107, 98 S.W. 509. The power of the city to pass such an ordinance may be implied from the power conferred upon the city to pass "all ordinances necessary to the health, peace, convenience, good order and protection of its citizens." Seaboard Air Line Railway v. Smith (1907), 53 Fla. 375, 43 So. 235. It would be too narrow a construction of this statute to say that because "railroads", "trains", "cars" or "locomotives" were not mentioned in the statute that the city had no authority over them. No mention is made in this statute of gunpowder, but would any one insist for an instant that an ordinance, prohibiting the manufacture of gunpowder within the city limits would not be a valid exercise of the power conferred by this act, upon cities, for the safety of persons or property. The operation of trains has always been attended with danger both to those operating them and the public, and while they may not have been in general use at the time the statute was enacted, yet the clauses above referred to, were for the purpose of authorizing cities to regulate all things or "practices", whether enumerated or not, for the safety of persons or property. The ordinance in question was a valid exercise by the city, of the power conferred by statute.
The complaint, in addition to charging the negligence by reason of the violation of the city ordinance, charges the appellant with the negligent operation of the cut of cars, by failing to give "any warning, by bell or whistle, or light, or other means, of the approach of said block of ten cars to said crossing, nor did defendant take any precaution to protect those about to use said crossing from being struck by said block of cars," etc. This would be a sufficient charge of negligence under the common law. Where several acts of negligence are charged in a complaint, it will be good, if any of the several acts of negligence is sufficiently charged. Pittsburgh, etc., R. Co. v. Terrell (1912), 177 Ind. 447, 457, 95 N.E. 1109, 42 L. R. A. (N. S.) 367, and cases cited; Pittsburgh, etc., R. Co. v. Lightheiser (1907), 168 Ind. 438, 459, 78 N.E. 1033; New York, etc., R. Co. v. Robbins (1906), 38 Ind.App. 172, 174, 76 N.E. 804.
It is contended by appellant that its demurrer should have been sustained on the further ground that there is no sufficient averment of emancipation of the decedent, and that the action should have been brought, if at all, by the appellee, as father of the decedent, for the loss of decedent's services. It is averred in the complaint that decedent "at the time of his death and for five years immediately previous thereto had been emancipated, and that during said time worked for divers persons and during all of said time and up to the time of his death collected all his wages, bought his own clothes, paid his own board, and in every way solely conducted his own affairs, collecting and receiving his wages, making his own contracts of employment, and paying for all his necessaries of every kind and character; that at the time of the death of John W. McDoniels, he was unmarried and his age was twenty years, nine months and ten days." Where the wrongful act or omission occasions the death of an adult, or one not in the services of his parents, the right of action is in the personal representative for their benefit. Mayhew v. Burns (1885), 103 Ind. 328, 334, 2 N.E. 793. The broad averment of the fact that decedent was emancipated would probably have been sufficient without the additional averments as to his relationship to his parents, for the five years prior to his death. State, ex rel. Shuckman v. Neff (1881), 74 Ind. 146, 150, 152; Voiles v. Beard (1877), 58 Ind. 510, 511. If the fact of his emancipation was too generally stated and the appellant was not fully informed of its meaning, or there was any doubt in regard to what was intended by the declaration the only remedy was by a motion to make more specific and not by demurrer. State, ex rel. v. Neff, supra; Cincinnati, etc., R. Co. v. Chester (1877), 57 Ind. 297; Pennsylvania Co. v. Sedwick (1877), 59 Ind. 336; Barnett v. Leonard (1879), 66 Ind. 422. "Emancipation" has a definite meaning and should be taken in its usual and ordinary sense. § 240 Burns 1914, § 240 R. S. 1881. But if it can be said that in this case "emancipation" is used in a technical sense, it means, as applied to the relinquishment of the claim to the services of a minor child, to free a child for all period of its minority, from care, custody, control and service. Webster, International Dictionary; Bristor v. Chicago, etc., R. Co. (1905), 128 Iowa 479, 104 N.W. 487, 488; Words and Phrases (2d Series) 243.
It is further insisted by appellant that the complaint is bad because the facts averred show the decedent was guilty of contributory negligence as a matter of law. The complaint is...
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