Wabash Ry. Co. v. Savage

• Decision Date: 29 October 1886
• Citation: 9 N.E. 85,110 Ind. 156
• Parties: Wabash Ry. Co. v. Savage.
• Court: Indiana Supreme Court

110 Ind. 156

9 N.E. 85

Wabash Ry. Co.

v.Savage.¹

Supreme Court of Indiana.

October 29, 1886.

Appeal from Whitley circuit court.

Action in damages for personal injury.

Chas. B. Stuart and W. V. Stuart, for appellant.

The motion to make the complaint more specific should have been sustained. Cincinnati, H. & D. R. R. v. Chester, 57 Ind. 297;Barnett v. Leonard, 66 Ind. 422;Brookville Turnpike Co. v. Pumphrey, 59 Ind. 78. See, also, Pennsylvania Co. v. Sedwick, 59 Ind. 336; and more particularly the very recent decisions of this court in Hawley v. Williams, 90 Ind. 160, (No. 10,287, decidedSeptember 22, 1883,) and Pennsylvania Co. v. Dean, 92 Ind. 459, (No. 10,755, decided January 5, 1884.)

The verdict is contrary to the evidence, not merely to the weight of evidence, but is absolutely unsustained by the evidence. For this there should be a reversal. Lindsay v. Central R. Co., 46 Ga. 447; S. C. 11 Amer. Ry. Rep. 415. In Toledo & W. Ry. v. Goddard, 25 Ind. 185, 195, this court said: “But, when the evidence in support of the finding is clearly and overwhelmingly or conclusively contradicted, it would be a reproach to the law, and a flagrant outrage upon the rights of parties, to refuse to disturb the verdict simply because it had been found by a jury.” In Goodwin v. Blachley, 4 Ind. 438, it is held that, unless the evidence is sufficient to support the verdict, it will be set aside. See, also, Evansville & C. R. R. v. Baum, 26 Ind. 70;Martin v. State, 28 Ind. 310;Jeffersonville, M. & I. R. R. v. Bowen, 49 Ind. 154;Davis v. Grater, 62 Ind. 408;Indianapolis & V. R. R. v. McClaren, Id. 566; Davis v. Hamilton, 71 Ind. 135;Thomas v. Patton, Id. 241.

The court erred in allowing appellee to show permanent injury and suffering. The complaint does not allege any permanent injury or suffering, and damages are not asked on that account.

The verdict is contrary to law. It is not alleged in the complaint, nor is it shown by the evidence, that the brakeman in this case was acting under orders from the company, or from the conductor, or that he was acting for the company, or in the scope of his employment. The law, therefore, relieves the company from liability for any willful act on his part. Marion v. Chicago, R. I. & P. R. Co., 59 Iowa, 428;S. C. 13 N. W. Rep. 415;Towanda Coal Co. v. Heeman, 86 Pa. St. 418; Sherman v. Hannibal & St. J. R. R., 72 Mo. 62;Everhart v. Terre Haute & I. R. R., 78 Ind. 292;Pennsylvania Co. v. Toomey, 91 Pa. St. 256; Little Miami R. R. v. Wetmore, 19 Ohio St. 110;Isaacs v. Third Ave. R. R., 47 N. Y. 122;Moore v. Sanborne, 2 Mich. 520;Puryear v. Thompson, 5 Humph. 396; Wood, Mast. & Serv. § 309; Shear. & R. Neg. § 63. And see McManus v. Crickett, 1 East, 106; Croft v. Alison, 4 Barn. & Ald. 590; McKenzie v. McLeod, 10 Bing. 385; Wright v. Wilcox, 19 Wend. 343;Rounds v. Delaware, L. & W. R. R., 64 N. Y. 129, 136;Jackson v. Second Ave. R. R., 47 N. Y. 274;Mali v. Lord, 39 N. Y. 381;Allegheny V. R. Co. v. McLain, 91 Pa. St. 442; Passenger Ry. v. Donahue, 70 Pa. St. 119; Flower v. Pennsylvania R. Co., 69 Pa. St. 210; Snyder v. Hannibal & St. J. R. R., 60 Mo. 413;McKeon v. Citizens' R. R., 42 Mo. 79;Steele v. Smith, 3 E. D. Smith, 321; Kerns v. Piper, 4 Watts, 222;Hughes v. New York & N. H. R. R., 4 Jones & S. 222; Great Western R. R. v. Miller, 19 Mich. 305;Thames S. Co. v. Housatonic R. Co., 24 Conn. 40;Aycrigg v. New York & E. R. R., 30 N. J. Law, 460; Church v. Mansfield, 20 Conn. 284;Campbell v. City of Providence, 9 R. I. 262;Golden v. Newbrand, 52 Iowa, 59;S. C. 2 N. W. Rep. 537;Turner v. North Beach & M. R. R., 34 Cal. 594;Gordon v. Rolt, 4 Exch. 365; Lamb v. Palk, 9 Car. & P. 629.

P. A. Randall and L. M. Ninde, for appellee.

Was it necessary to make the complaint more specific? The complaint alleges that plaintiff was admitted as a passenger on a train, westward bound from the city of Fort Wayne, on October 15, 1878, and was carried by said train 10 miles from the city, and on a dark night, away from the station, and in a swamp, the defendant, by its agents and servants, without stopping the train, struck and pushed plaintiff from the car, by reason of which he received the injuries complained of. This, according to the authority of our supreme court, would be a sufficiently specific allegation of negligence; for it is sufficient to plead negligence generally, describing the particular act relied on, without pleading the evidence. See 1 Work, Pr. § 400, and authorities there cited.

A review of the evidence shows that it sustains the verdict.

The evidence of permanent injury was properly admitted under the complaint. Pittsburgh, etc., Ry. Co. v. Sponier, 85 Ind. 165;Wright v. Compton, 53 Ind. 341.

The verdict is not contrary to law. Where a railroad company undertakes to carry one as a passenger, even without compensation, it must protect such passenger from the negligence and willful misconduct of its servants on the train. Chicago & E. R. R. v. Flexman, 103 Ill. 546;Philadelphia & R. R. Co. v. Derby, 14 How. 468;Columbus, C. & I. C. R. Co. v. Powell, 40 Ind. 37. To the same effect are the following cases: Gillenwater v. Madison & I. R. Co., 5 Ind. 339;Fitzpatrick v. New Albany & S. R. Co., 7 Ind. 439;Lemon v. Chanslor, 68 Mo. 340;Nolton v. Western R. Co., 15 N. Y. 444;Bissell v. Michigan Southern, etc., R. Co., 22 N. Y. 307;Edgerton v. New York & H. R. R., 39 N. Y. 227.

It being settled that plaintiff was a passenger, the liability of the company for the willful act of its brakeman is clear. Goddard v. Grand Trunk Ry., 57 Me. 202; Ang. & A. Corp. (8th Ed.) 404; Wood, Mast. & Serv. 321; Bryant v. Rich, 106 Mass. 180;Chamberlain v. Chandler, 3 Mason, 242;Lake Erie & W. Ry. Co. v. Fix, 88 Ind. 381. And see, also, Craker v. Chicago & N. W. R. Co., 36 Wis. 657;Railroad Co. v. Finney, 10 Wis. 388;Moore v. Railroad Co., 4 Gray, 465;Brand v. Railroad Co., 8 Barb. 368;Seymour v. Greenwood, 7 Hurl. & N. 356; Railroad Co. v. Vandiver, 42 Pa. St. 365; Railway Co. v. Hinds, 53 Pa. St. 512.

The authorities cited by appellant are, with two or three exceptions, cases of trespassers, to whom the railroad company owed no contract duty.

Niblack, J.

This action was commenced in the superior court of Allen county, by Thomas S. Savage against the Wabash Railway Company, for damages for alleged personal injuries, where there was a trial and a verdict for the plaintiff. A new trial having been granted, a change of venue was ordered to the Whitley circuit court, where a second trial resulted in a verdict for the plaintiff, assessing his damages at $2,981.76. This verdict was accompaniedby answers to special interrogatories which had been submitted to the jury, upon which the defendant demanded judgment in its favor; but this demand, as well as a subsequent motion for a new trial, being refused, judgment was entered upon the verdict.

Error is assigned upon the alleged insufficiency of the complaint, upon the refusal of the court to require the complaint to be made more certain and specific, upon the failure of the court to render judgment in favor of the defendant upon the answers to the special interrogatories, and upon the denial of the defendant's motion for a new trial.

The body of the complaint was as follows: “Thomas S. Savage complains of the Wabash Railway Company, a corporation duly organized in pursuance of the laws of the state of Indiana, that said defendant, to-wit, on the fifteenth day of October, 1878, owned and operated a railroad running through said county, and said defendant, on the day last aforesaid, was the owner and operator of the locomotives and cars used upon said railroad, and was then and there engaged in the business of a common carrier of passengers on its said road, and, as such, admitted the plaintiff into a car and train upon said road as a passenger thereon; that said car and train upon which the plaintiff was so admitted was to and did go from the city of Fort Wayne, in said county, westward, and the defendant, having so admitted the plaintiff on its said car and train, proceeded to carry him westward to a point, to-wit, ten miles westward of said city of Fort Wayne, in a swamp, away from any station, when, in the night-time, when it was dark, the defendant failed to stop her said train so he could with safety alight from said car, but wrongfully and without any fault on his part, while the train was running, said defendant, by its servants and agents, unlawfully struck him, the plaintiff, and wantonly, forcibly, willfully, and maliciously pushed, pulled, and shoved the plaintiff out of said car onto the platform thereof, and said defendant, by its said agents and servants, then, unlawfully, wantonly, forcibly, and willfully, struck said plaintiff, and shoved him with great violence from and off the said platform of said car; thereby threw and caused him to be thrown against and upon the ground with great violence, whereby, without fault or negligence on his part, he was made to fall upon and strike the earth with great violence, and was thereby thrown against and under the said car, and under the wheel of said car, whereby his left arm and hand was greatly injured and crushed, so that it was and became necessary to amputate the same, and whereby his head and back and shoulder became and were greatly injured, and whereby he was confined to his bed for a long space of time, to-wit, for the space of six months, and by reason thereof the plaintiff became and was for a long time sick, and unable to walk or work; that he suffered therefrom great mental and physical pain, and was wholly unable to attend to his necessary and usual business, and has so continued to the present time, and has been put to great expense, to-wit, five hundred dollars, for surgical and other treatment and attendance in attempting to cure himself of said injuries; that he was compelled to have his left arm amputated, and has thereby become wholly crippled and maimed, and prevented from actively...