York v. Callahan

• Decision Date: 18 June 1907
• Docket Number: No. 5,895.,5,895.
• Parties: NEW YORK, C. & ST. L. R. CO. v. CALLAHAN.
• Court: Indiana Appellate Court

40 Ind.App. 223

81 N.E. 670

NEW YORK, C. & ST. L. R. CO.

v.CALLAHAN.

No. 5,895.

Appellate Court of Indiana, Division No. 1.

June 18, 1907.

Appeal from Superior Court, Porter County; H. B. Tuthill, Judge.

Action by Catherine Callahan against the New York, Chicago & St. Louis Railroad Company. From a judgment for plaintiff and an order refusing a new trial, defendant appeals. Reversed and remanded.Walter Olds and Chas. M. Niezer for appellant. M. E. Barnhart, V. S. Reiter, and L. L. Bomberger, for appellee.

HADLEY, J.

This is an action by the appellee against the appellant for damages resulting from an injury alleged to have been received while a passenger upon the passenger train of appellant by reason of the collision between said passenger train and another train of appellant.

The complaint is in one paragraph. A demurrer was filed by appellant, which was overruled. Answer in general denial, trial by jury, and verdict for appellee, together with answers to interrogatories. Motion for new trial overruled. The overruling of appellant's demurrer is the first error complained of. It is insisted by appellee that no question is presented upon this demurrer. There appears to be some virtue in appellee's contention; but, since the cause will have to be reversed, we deem it proper to pass upon the sufficiency of the complaint. The complaint avers that appellant is a common carrier of passengers; that appellee became a passenger on appellant's train; that, while on said train as such passenger, a collision occurred between said passenger train and another train under the control of appellant approaching along and upon said railway; and that appellee was then and there injured. The complaint further avers as follows: “That said collision occurred wholly on account of the negligence of the defendant in the construction, equipment, operation, and control of said railroad, and the trains thereon.” It is urged against this complaint that it does not sufficiently charge each act of negligence, and that the averments of the different acts of negligence are joint. It is well settled under our authorities that, in suits by a passenger against a common carrier for injuries sustained while on the carrier's train as such passenger, much less certainty or particularity, in charging negligence to which the injury sustained is attributable, is required than in other cases arising out of negligence, for the reason that such acts of negligence are peculiarly within the knowledge of the carrier. To simply aver that a collision occurred injuring such passenger through the negligence of the carrier is usually sufficient. And to aver that such collision occurred through the negligence of the carrier in the respects as here averred is clearly sufficient. Terre Haute, etc., Co. v. Sheeks, 155 Ind. 74, 56 N. E. 434;Indianapolis St. Ry. Co. v. Schmidt, 163 Ind. 360, 71 N. E. 201. Under this complaint proof of any one of the averred acts of negligence would be sufficient. There is no apparent connection between the different negligent acts as averred, and the case of Southern Ry. Co. v. Jones, 71 N. E. 275, 33 Ind. App. 333, relied upon by appellant on this point, is not an analogous case. In that case it was clearly the theory of the complaint that the accident was caused by the combined defects of a defective brake and excessive speed, in which case it was held that the averments were joint, and that both should be proven. But in the case at bar no such combination is shown by the averments; nor is any such theory disclosed in the trial of the cause. It therefore is controlled by the well-established rule that different negligent acts may be averred in one paragraph, and that proof of any one is sufficient to sustain the action. Pennsylvania Co. v. Witte, 15 Ind. App. 583, 43 N. E. 319, 44 N. E. 377;Diamond Block Coal Co. v. Edmonson, 14 Ind. App. 594, 43 N. E. 242;Standard Oil Co. v. Bowker, 141 Ind. 12, 40 N. E. 128;Gould Steel Co. v. Richards, 30 Ind. App. 348, 66 N. E. 68;New York, etc., R. Co. v. Robbins (Ind. App.) 76 N. E. 804.

Objection is made to the giving of the third instruction. By this instruction the jury were told that the burden of overcoming the presumption of negligence, arising from the evidence of the occurrence of an accident and the injury to the passenger, is upon the carrier, and that, where the evidence shows that the injury to a passenger is brought about by a collision between said train and another train of the same company, such evidence is sufficient to warrant the jury in finding such carrier guilty of negligence. While the first clause of this instruction is broader than it in fact should be, since the injury should be limited to an act of the carrier company, yet, taken in connection with the cause at issue, it is not erroneous. The principle involved in said instruction, with the suggested limitation, is clearly correct under our recent authorities. Indianapolis St. Ry, Co. v. Schmidt, supra; Pittsburgh, etc.,...