Yelton v. The Evansville And Indianapolis Railroad Company

• Decision Date: 22 February 1893
• Docket Number: 15,198
• Citation: 33 N.E. 629,134 Ind. 414
• Parties: Yelton, Administrator, v. The Evansville and Indianapolis Railroad Company
• Court: Indiana Supreme Court

33 N.E. 629

134 Ind. 414

Yelton, Administrator, v. The Evansville and Indianapolis Railroad Company

No. 15,198

Supreme Court of Indiana

February 22, 1893

Petition for a Rehearing Overruled May 19, 1893.

From the Greene Circuit Court.

Judgment reversed, with instructions to sustain the demurrer to the supplemental paragraph of answer.

W. A Cullop, C. B. Kessinger, G. A. Knight, A. G. Cavins, E. H. C Cavins and W. L. Cavins, for appellant.

J. E. Iglehart, E. Taylor and J. T. Hays, for appellee.

Olds, J. Coffey, C. J., took no part in the decision of this cause.

OPINION

Olds, J.

This action was brought by the appellant Vaden C. Yelton, administrator of the estate of William B. Yelton, deceased, against the appellee, the Evansville and Indianapolis Railroad Company, for damages on account of the death of the decedent, alleged to have resulted from the negligence of the appellee. The decedent was in the employ of the appellee as engineer on a passenger train, at the time of his death.

In the first paragraph of the complaint, the death is alleged to have resulted on account of the failure of the appellee to properly keep and maintain its track in a safe condition at a certain point where a switch united with the main track, causing the engine and train to be derailed, and killing the decedent.

The second paragraph of the complaint alleges the death of the decedent to have occurred on account of the engine which the deceased was managing and running coming in contact with, and running against and over, a mule, derailing the engine and cars; that the mule came upon the track, and was run against and over, at a point where the railroad was not fenced, and at a point where the appellee was required by law to fence the same, and the death of the decedent resulted on account of such negligence and failure to fence the railroad, and that the decedent had no knowledge of such condition in the road, and that the same was not fenced.

Appellee answers, first, by general denial; second, that the railroad over which the appellee was running its trains, and upon which the decedent was injured, was owned by the Terre Haute and Indianapolis Railroad Company; that the appellee was running its trains over the same by virtue of a lease, whereby both the appellee and the Terre Haute Railroad Company were each running trains over said railroad; that by the terms of the lease the appellee had no authority to repair, or keep in repair, said road; that the only right it possessed was to run its trains over said road, and the Terre Haute and Indianapolis Railroad Company was to keep the road in repair, and the same had been repaired, and was kept up by the Terre Haute and Indianapolis Railroad Company, by its employes and servants working upon the same, and that if the injury occurred by reason of the negligence to keep the track in repair, it was by reason of the negligence of the Terre Haute and Indianapolis Railroad Company, and its servants, and not the negligence of the appellee or its servants, and that the usual and ordinary method of keeping up the repairs on said road, as appellant's decedent well knew, was by the labor of the employes and servants of the appellee's lessor.

The third paragraph of answer is addressed to the second paragraph of the complaint, and alleges that the appellant's decedent had run on said road for some six weeks in the employment as engineer, passing over the same, a portion of the time, three times a day in daylight, and had full opportunity to know the condition of the road as to fences, etc., and sets forth other facts in regard to the running arrangements, substantially as stated in the second paragraph.

After the suit was commenced, the appellee made a settlement with the widow of the decedent, and paid to her $ 500 in full for all damages on account of the death of her husband, and agreed to pay in addition thereto the costs of the clerk and sheriff, as court costs, and that the costs should be paid before a dismissal should be had.

Appellee pleads this settlement and payment as an answer to the complaint, and alleges the payment of the costs, and that she was the widow and sole heir.

The appellant demurred to the last or supplemental paragraph of answer, setting up the settlement with the widow, and the demurrer was overruled, exceptions reserved, and the ruling assigned as error.

The appellant, failing to reply to the last paragraph of answer, after being ruled to do so, judgment was rendered against him for costs.

We will first consider the sufficiency of the last paragraph of answer, upon which judgment was rendered.

It is suggested that this paragraph contains two separate and distinct defenses, that the closing averments of the paragraph allege that the damages sued for "have been fully compromised, adjusted, settled, and paid for." "That the paragraph pleads two defenses: 1st. A detailed statement of facts showing payment. 2d. A general averment of payment and release," and that there is judgment rendered upon it.

We can not give our assent to this method of pleading or to this theory of the particular pleading. It is very certain that this paragraph attempts to plead facts showing a settlement of the damages with the widow; that she was the only heir, and alleging a payment of the costs in pursuance with the terms of the contract of settlement. This clearly appears to be the theory upon which the paragraph is based.

The action is prosecuted under section 284, R. S. 1881. This section authorizes the action to be prosecuted by the administrator of the decedent. The damages recovered inure to the exclusive benefit of the widow and children of the deceased.

In this case, there being no children, the damages would inure to the sole benefit of the widow, but she could not prosecute the action....