Wabash W. Ry. Co. v. Morgan

• Citation: 31 N.E. 661,132 Ind. 430
• Parties: Wabash W. Ry. Co. v. Morgan.
• Decision Date: 16 June 1892
• Court: Supreme Court of Indiana

132 Ind. 430

31 N.E. 661

Wabash W. Ry. Co.

v.Morgan.¹

Supreme Court of Indiana.

June 16, 1892.

Appeal from circuit court, De Kalb county; Stephen A. Powers, Judge.

Action by William M. Morgan against the Wabash Western Railway Company for damages resulting from injuries caused by defendant's negligence. Judgment for plaintiff. Defendant appeals. Affirmed.

Chas. B. Stuart, Thos. A. Stuart, and Wm. V. Stuart, for appellant. R. Wes McBride, W. L. Penfield, and F. S. Blattner, for appellee.

OLDS, J.

The appellee brought this action against the appellant for damages resulting from an injury alleged to have been caused by the negligence of the appellant. The appellee was acting in the capacity of yardmaster on appellant's railroad at Butler, Ind., and the injury is alleged to have occurred by reason of a defective engine. It is alleged in the complaint that appellee's duty was the making up of trains of cars, coupling and uncoupling cars; that the engine provided for and used in doing said work was, as appellant and its officers well knew, defective, unsafe, and dangerous, and, as appellant well knew, had been thus defective, dangerous, and unsafe for a long time prior to the injury; that the defect consisted in this: that the throttle of said engine leaked, and said engine was by reason thereof, and by reason of other defects, which appellee is unable to specify, hard to handle, manage, and control, and could not be so handled, managed, and controlled as to be safe for those engaged in coupling and uncoupling the cars which were propelled by it, such difficulty in managing, handling, and controlling being in part caused by the leaking of said throttle, and in part by defects unknown to appellee, and which he is unable to more particularly describe or specify, but that said defects combined were such that when said engine was reversed and caused to move backward, it would often give a sudden spring or start, and, instead of moving backward steadily, and with regular motion, would move with a sudden rush or spring; and that appellant had long known of said defective and dangerous condition of said engine; that appellant employed as engineer to use, run, manage, and control said engine one John Duerk, who was, as appellant well knew, and had long known, incompetent, unskillful, careless, and unfit to be intrusted with such employment, appellant's agent, whose duty it was to employ such engineer having long before been informed of the incompetency, unskillfulness, carelessness, and unfitness of said Duerk, but, notwithstanding such notice, continued to employ him and continue him in such employment. It is then alleged that appellee had no knowledge of the defective condition of the engine or of the unskillfulness and unfitness of the engineer. The manner of the injury is then alleged, showing that it occurred while attempting to make a coupling of the cars; that he signaled the engineer to run back, and that just as the cars were coming together, and as he was about to make the coupling, the engine gave a sudden start or spring, driving the cars together with great and unusual force and speed, so that before the appellee could withdraw his hand and step from between the cars he was struck by the one nearest the engine, and thrown off his balance, and his left hand thrown between the deadwoods, and was so crushed and mangled that it became necessary to amputate the same, and it was accordingly amputated, and lost to the appellee; that the injury was caused solely on account of the defective condition of the engine and incompetency and unskillfulness of the engineer, and appellee was without fault contributing to the injury.

Numerous errors are assigned. The first error complained of is that the court erred in overruling appellant's motion to make the complaint more specific, in that the appellee should be required to state the length of time the engine had been defective and the length of time the engineer had been negligent, as alleged, the exact defects in the engine, the particulars which constituted the alleged incompetence, unskillfulness, carelessness, and negligence of the engineer, and the extent and nature of the injury. The complaint alleges that the throttle of the engine leaked, and that there were other defects, which were unknown to appellee, and which he is unable to specify, but that the appellant had long known of such defects. The appellee's employment was not such as to require him to possess any knowledge as to the condition of the engine. His business was the making up of trains and coupling of cars, and he had no supervision over the engine, and the keeping of the same in repair. He could only have such knowledge of defects in the engine as he might as a nonexpert learn by observation and gain from others. He alleges that the throttle leaked, and that there were other defects known to the appellant and which were unknown to him, and which he was unable to specify. The complaint was sufficiently specific in this particular. As regards the length of time the engine was out of repair, and the engineer had been negligent, it is alleged that the defects had been long known to the appellant, and that he had long before been informed of the incompetency, unskillfulness, and carelessness of the engineer, and had continued him in its employ, notwithstanding such notice. The exact time the company knew of such defects and incompetency and carelessness of the engineer is not material, and the complaint was sufficient, and the allegations as to the engineer's carelessness and incompetency were also sufficient. The negligence charged against the appellant in this case is the failure to keep in repair the engine used for making up trains, and permitting it to become and remain out of repair after having knowledge of its defective condition, and employing and retaining in its service an incompetent, careless, and negligent engineer to operate such engine. Such negligence and failure of duty are alleged in plain, specific terms in the complaint. As we have said, the exact length of time that appellant had such knowledge is not material, it being alleged that the company did have knowledge. The particular defects in the engine should have been stated, if known to the appellee, but the necessity of specifically setting out all of the defects is avoided by the averments that there were other defects which were known to the appellant, but were not known to the appellee. Such being the fact, the appellee ought not to be required to make the complaint more specific in this particular. He shows his inability to do so. There was no error in overruling the motion to make the complaint more specific.

The next alleged error complained of and discussed is the overruling of a demurrer to the complaint. There is no such question before us for consideration. There was a demurrer filed to the complaint, and overruled, and exceptions reserved, but afterwards, on leave of court, the complaint was amended. The amended complaint superseded the original complaint, to which a demurrer was addressed, and there is no longer any question in the record as to the sufficiency of the complaint at the time the demurrer was ruled upon.

The next question relates to the ruling of the court in refusing to require the appellee to answer certain questions when being examined under the statute authorizing the examination of parties. Sections 509, 510, Rev. St. 1881. On such examination appellant's counsel asked the appellee the following questions: “(123) Who has told you that the engine was out of repair?” “(125) Now who told you all the above alleged defects of the engine?” “(129) Now, in regard to the engineer, Duerk, who told you that he was incompetent?” The appellee refused to answer the questions, and the appellant appealed to the court, and asked that he be ordered to answer them, and the court refused to require him to answer such questions. The statute (section 509, supra) provides that a party may be examined as a witness concerning any matter stated in the pleading. It is evident, we think, that the purpose of the statute is that a party may be compelled to testify as to all the matters within his own knowledge stated in the pleading. If he has received an injury for which he has sued, he may be compelled to disclose all he knows about it, how it occurred, and, in this case, all he knows about how the injury occurred, and as to the defective condition of the engine and incompetency of the engineer, but he cannot be compelled to testify as to the names of his witnesses, and to state by whom he expects to prove this fact or the other. It was not the purpose of the statute to make a party disclose his evidence by which he intends to make his case, any further than his own knowledge of the facts stated in the pleadings goes. Some of these questions relate to facts stated in the pleading. The first asks him the name of the person who told him the engine was out of repair. The others are of the same character. They do not concern any matter alleged in the pleading. The right existed to examine the appellee fully as to the defect in the engine, which is the fact alleged; but who he talked with, and who told him about the defects, is not a matter alleged in the pleading. There was no error in the ruling of the court.

The next alleged error is the ruling of the court in permitting appellee to amend his complaint during the trial, and after the evidence was closed. This was a matter within the discretion of the court, and there is no abuse of discretion shown. It is contended that such an amendment could only be made at the time it was done on proper showing, supported by affidavit. The court had the right to allow it without such showing. Railway Co. v Jones, 103 Ind. 386, 6 N. E. Rep. 8; Meyer v. State, 125 Ind. 335, 25 N. E....