25 Ind. App. 494 | Ind. Ct. App. | 1900
—The complaint in this cause was in two paragraphs. The first paragraph, omitting its formal parts, avers that on the 19th day of November, 189Y, and for a long time prior thereto, the defendant had been in the business of a common carrier in carrying and transporting passengers for hire over its railroad from the city of Brazil to a coal mine known as the Standard Block Coal Company and to return therefrom to the city of Brazil; that on said day the defendant undertook and agreed with the plaintiff, for a reasonable compensation theretofore paid by him to said defendant, safely to carry and transport the plaintiff from said city of Brazil to the said Standard Block Coal Company mine and return in good and comfortable cars; that, pursuant to said agreement and undertaking, the said plaintiff entered the cars of said defendant at the said city of Brazil, and was safely carried and transported therefrom to the said mine, but the plaintiff alleges that said defendant did not keep its agreement and undertaking safely to
The errors assigned are: (1) The overruling of appel
Counsel for appellant contend that the complaint is in tort; for appellee, that-it is in contract. Conceding, without deciding, that it is, in tort, it will be so treated in this opinion.
It is urged against the complaint (1) that no actionable negligence is charged; (2) that the acts of negligence attempted to be charged are not shown to be the proximate cause of appellee’s injury. We would not be warranted in holding as a matter of law that the operating of a train of cars as averred in the complaint was not negligence. It was a question, in our opinion, to be submitted to the jury under proper instructions. As said by the Supreme Court in Evansville, etc., R. Co. v. Krapf, 143 Ind. 547: “It is not necessary in such a complaint to recite all the facts and circumstances that may tend to show that the act complained of was negligent. It is settled by the decisions of this court that a complaint charging the defendant with an act injurious to plaintiff, with a general allegation of negligence in the performance of the act, is sufficient to withstand a demurrer to the complaint for want of sufficient facts; and that under such allegation any evidence tending to show that the act was negligently done may be admitted; otherwise the evidence would have to be pleaded instead of the facts.” Upon the subject of proximate cause, the Supreme Court in Louisville, etc., R. Co. v. Lucas, 119 Ind. 583, 6 L. R. A. 197, said: “It is not necessary that precisely such an accident as actually occurred might be anticipated, for there is liability if it was probable that some injury might result from a negligent breach of duty. We have disposed of the argument of appellant which asserts that the negligence attributed to it was not the proximate cause of appellee’s in
Counsel for appellant next contend that the court erred in refusing to render judgment in its favor on the answers 'of the jury to the special interrogatories notwithstanding the general verdict, upon the following grounds: (1) The special findings of fact do not show that the negligence charged in the complaint was the proximate cause of appellee’s injury; (2) because they show that appellant exercised the highest degree of practicable care to guard appellee against injury; (3) because the collision with the horse was unavoidable. The special facts found show the train was running at the speed of twelve miles an hour over a safe track and roadbed, with safe cars and locomotive, all properly equipped; that the road was securely fenced, with good cattle-guards at highway crossings, and wing fences thereat; with a competent and careful engineer; with engineer and fireman at their posts looking ahead for signals; with conductor standing on steps at one side on front end of caboose; with a brakeman standing on steps at the other side on front end of caboose; both provided with lanterns to signal engineer in case of danger; a brakeman standing at the brake on platform at front end of caboose; all three of these in a position to see ahead, and all watching for dangers ahead; that it was light enough to see 200 or 300 feet ahead of the train; that a horse suddenly sprang upon the
Answers of the jury to interrogatories will overthrow the general verdict only when there is such .an antagonism upon the face of the record as is beyond the possibility of being removed by any evidence legitimately admissible under the issues in the cause. Indianapolis, etc., R. Co. v. Lewis, 119 Ind. 218. Sponhaur v. Malloy, 21 Ind. App. 287, 300, and authorities there cited.
Every presumption is indulged in favor of the general verdict. It implies that the jury found every fact charged in the complaint to entitle appellee to recover, and that every defence set up to defeat a recovery of the plaintiff was found against the defendant.
Is the special finding of facts irreconcilably in conflict with the general verdict ? It is shown by the evidence that cattle and horses were frequently, before the accident, found on the track over which appellant ran its trains, and that the men on more than one occasion stopped the train to drive them off. When appellee was injured, appellant’s train was being run backwards at the rate of twelve miles an hour with a light caboose on the front. It was shown by the testimony that a train run in this manner would be derailed in nine
As to the second reason given for judgment on the answers to interrogatories, it is proper to say that the negligence charged is the running of a train backward at a rapid rate of speed, so that the engineer was unable to see an obstruction on the track in time to stop the train and avoid the same, and that the train was liable to be derailed by reason of the light car coming in contact with obstructions. It may be conceded that the collision with the horse was unavoidable, under the circumstances, but that was not sufficient. It only devolves upon a passenger to show that he was injured without fault on his part. The law then presumes negligence upon the part of the carrier, and it is for the carrier to remove this presumption.
In discussing the action of the court in overruling the motion for a new trial, it is claimed by counsel for appellant that the verdict is contrary to the evidence, is not sustained by sufficient evidence, and is contrary to law. The evidence discloses that at the time of the accident the train was made up of a caboose in front of seven box or freight ears in which from 300 to 400 passengers, miners, were riding, and the locomotive was attached with its front end to the rear end of the last car, pushing the train. It was running at the rate of from twelve to twenty miles an hour ovet a track on which horses had been frequently seen. The engine could have been placed at the front end of the train at the loss of a few minutes’ time. In the opinion of experts it was dangerous to run the train in this manner. Derailment was likely to occur if the caboose came in contact with an obstruction. It was the duty of the railroad to use the highest degree of practicable care to prevent injury. Louisville, etc., R. Co. v. Lucas, 119 Ind. 583. The evidence shows that it failed to do this. It follows that the verdict is sustained by the evidence and is not contrary to law.
Appellant objected to certain questions propounded upon cross-examination to witnesses for and employes of appellant,—Eldridge, Miller, and O’Dell. The action of the
Over the objection of appellant, Henry Develin, a witness for appellant was permitted in rebuttal to answer the following questions: “You may tell the jury how frequently, if at all, you have seen stock on the railroad in the vicinity of this collision.” The witness answered: “Just east of there. I don’t recollect of seeing any just at that crossing where the wreck occurred, -but somewhere between that place and where I got on at number eleven I saw stock frequently.” The objection made was that plaintiff went into this subject in his examination in chief, and because it is not proper rebutting testimony, and because the question does not fix the time prior to the accident. Also the following: “You may tell if you know anything as to the train men seeing them.” The witnéss answered: “My impression is they knew it.” The court struck out the answer. The following was also propounded: “I want you to state to the jury where the miners’ train was left after the miners were taken to their work in the mines ?” Also the following: “Does the engine remain at the mines or does it leave?” “What trouble is there, if any, in hitching to the west end of the train at the east end of the switch?” The witness answered: “Ho trouble at all that I know of.” The following: “If there is
The remaining reason for a new trial argued by counsel
Instruction number three, referred to, told the jury that a carrier undertakes to carry a passenger safely to his destination. This is the unquestioned duty of the carrier. In the performance of this duty, it must exercise the highest degree of practicable skill and care, as stated in instruction three and one-half. Construed together, and all the instructions under the universal rule must be so considered, they were not, in our opinion, misleading. The jury could not have inferred that it was the duty of appellant to carry appellee with absolute safety.
Instruction number four stated that: “Although a common carrier of passengers does not insure the safety of passengers, the law will not tolerate any negligence on the part of such carrier, and if it is guilty of any negligence resulting in the injury of such passenger, it is liable for such injury.”
Instruction number seven stated: “If you find from the evidence in this cause that the defendant was guilty of negligence in running its train with the engine in the rear, if it did so run it, and that by reason of so running it the car in which the plaintiff was riding was derailed, by reason of coming in contact with an obstruction on the track, if it was so derailed, whereby plaintiff was injured in the manner described in the complaint, then it is no defense for the defendant to prove that such train so negligently run was operated as skilfully and carefully as a train run in that maimer could be operated.”
The first instruction, which is lengthy, stated the issues; the seventh informed the jury that if appellee was injured by reason of the negligence in running its train backwards
We find no error for which the judgment should be reversed. Judgment affirmed.