35 Ind. App. 403 | Ind. Ct. App. | 1905
This action was commenced in the Clark Circuit Court by appellee to recover damages alleged to have been sustained on account of the death of Dean C. Cl^pp, February 23, 1901. The accident in which appellee’s intestate lost his life occurred in Dearborn county, and upon application of appellant and consent of parties the venue was changed to Dearborn Circuit Court, where it was tried.
The complaint Was in three paragraphs designated as the first, second and third paragraphs of amended .complaint. The first paragraph alleged that deceased was in the service of appellant as a telegraph operator at a signal-station; that under his contract of employment appellant undertook to carry deceased each day, on its regular passenger-train, free
The second paragraph differed from the first only in this: That while in the first paragraph of the complaint it was charged that appellant negligently put. deceased off the train, and then ran the other train against him, in the second paragraph it was alleged that the appellant put deceased off the train and then negligently ran the other train against him. In other words, the first paragraph charged negligence in putting deceased off the train at that point; the second paragraph charged negligence in running the other train against him. While it contained all the formal statements of the other two, with the exception of the statement that he was to be carried free as a passenger, the amended third paragraph of complaint was based upon subdivision four, section one, of the employers’ liability act. Acts 1893, p. 294, §7083 Burns 1901. It charged the appellant with the negligence of Reagan, the engineer in charge of the locomotive, and Lloyd, the conductor in charge of the train, in this: That they negligently stopped the locomotive and train for the purpose of enabling the deceased to get off at. the signal-station, and negligently failed to inform Clapp that the place was dangerous because the train was behind time. In this
Motions to make each paragraph more definite and demurrers to each paragraph were overruled. To each paragraph appellant filed a general denial. A trial resulted in a verdict and judgment in favor of appellee for $1,500. Answers to interrogatories were returned with the general verdict.
In Indianapolis, etc., Transit Co. v. Foreman, supra, the appellee, who was engaged as a laborer upon the tracks of the appellant, and was injured while on the car of appellant, which he entered to be transported to his home, a complaint averred that he “was simply a passenger thereon at the time of the accident.” . The court held that the allegations that he was simply a passenger and that appellant owed him a duty and promised to carry him safely, are mere conclusions of the pleader, and can not control the specific facts alleged showing that he was a fellow servant of those in charge of the passenger-car. Appellant cites tire foregoing case.
In the paragraph under consideration it is averred that the appellant agreed to and undertook to carry the decedent on its regular passenger-trains, free of charge, as a passenger, and safely discharge him from such train. These averments are of facts and not a conclusion of the pleader. They show a contract which tire parties were competent to make. The questions presented by demurrers to the first and second paragraphs are the same. The demurrer to each was correctly overruled.
Another objection, that it fails to show that the decedent was, at the time of his injury, in the line of his duty, is not well taken.
The third objection is that the complaint fails to negative knowledge on the part of the deceased of the dangei’, such denial of knowledge being required for the purpose of showing that the danger was not voluntarily assumed. The statement of the complaint shows that this claim can not be allowed. The demurrer was correctly overruled.
Counsel for appellee concede that there can be no recovery upon the first and second paragraphs of the complaint, because of the failure of the proof of the facts alleged to constitute decedent a passenger. They insist that the proof establishes the allegations of the third paragraph, which proceeds under the employers’ liability act, and the negligence is that of the conductor who stopped the train and put the deceased off at a place made dangerous by reason of the fact that the train was behind time, without informing him of such fact. Under the act relied upon there can be no recovery for the injury or death of one whose own negligence pfoximately contributed thereto. From the facts specially found there can be no escape from the conclusion that the unfortunate accident resulted from decedent’s own negligence.
The jury finds that there was no evidence whether deceased knew that train No. 27 was behind time when ho went on the same at Aurora. Facts are found, however, in answer to other questions which clearly show that he did. It was his duty, inseparably connected with his occupation, to know the time of the trains passing at Hogan. It would be presumed that he was not remiss. He knew thoroughly the conditions existing at Hogan. The darkness of the night and the noise of the engine might be accepted as excuses for his not seeing or hearing the approaching train and the call to him of his associate^ Bacon, but not for his
There are numerous other alleged errors discussed. It is not necessary to- consider them.
The answers to- interrogatories show that the decedent was guilty of negligence contributing to his death, and are in irreconcilable conflict with the general verdict.
There is no reason to believe that there would be any material change in the evidence upon a second trial. The judgment is therefore reversed, with instructions to sustain appellant’s motion for judgment on the interrogatories.