164 Ind. 143 | Ind. | 1905
Action by appellee against appellant for the negligent killing of her decedent. The complaint contains two paragraphs. Trial by jury, and a general verdict awarding damages for the sum of $2,500, together with answers to numerous interrogatories, returned. Over motions by appellant for judgment on the answers to the interrogatories and for a new trial, judgment was rendered on the general verdict. The errors assigned relate to the overruling of the demurrer to each paragraph of the complaint, and to the overruling of each of the above-mentioned motions.
The first paragraph of the complaint may be said to disclose substantially the following facts: Appellee is the administratrix of George E. Coombs, deceased, and appellant is a railroad corporation duly organized, and operating and controlling a railroad running through the State of Indiana, which, among others, runs through the counties of Montgomery and Monroe. On and prior to the 2d day of December, 1899, Coombs, the decedent, was in the employ of appellant as a brakeman, serving as such on one of its freight-trains which ran over its said railway. Immediately beyond the corporate limits of the city of Bloomington, in Monroe county, Indiana, appellant on and previous to the aforesaid date had a switch yard wherein it negligently constructed and maintained, as alleged, several switch tracks or sidings, and also a roundhouse and telegraph station. These side-tracks or switches were from one-fourth to one-half mile in length, and parallel with the main railroad track. The distance between these switch tracks was from six and one-half to seven feet, and freight-cars running
. 1. It is insisted by counsel for appellee that the complaint sufficiently discloses several acts of negligence which will render the railroad company liable either at common law or under the employers’ liability act. §7083 Bums 1901, Acts 1893, p. 294. When tested by the rules of pleading we think it is evident that this action is not predicated upon any of the provisions of the employers’ liability act of this State, for the mle is well settled .that when a
It is insisted by counsel for appellant, among other reasons, that the complaint is insufficient on demurrer because it does not charge that appellant owed the decedent any duty in regard to the operation or running of its train in its switch yard at the time of the accident. It is said that the only duty owing by appellant was properly to construct and maintain its tracks. This duty, it is asserted, the law imposed upon the railroad company, and that a violation thereof is the only one charged in the complaint. The further contention is that the duty of appellant to have a light or a watchman on its cars, or to give signals or warning in regard to the movement or running of its trains in the switch yard in question, was not a duty imposed by any statute or ordinance, and did not arise out of any general law applicable to the case. It is contended that if any such duty existed it should have been expressly shown under the averments of the complaint. It is claimed that it is not disclosed to have been the custom of appellant, previous to the accident, to have a lookout or watchman or light upon its cars when they were being backed or run on the tracks in the switch yard, or to give any warning or signals upon such occasions by ringing the engine bell or sounding the whistle. It is urged that under such circumstances no duty to do so could arise either by operation of law or in fact.
The further contentions are advanced (1) that the paragraph wholly fails to disclose any duty of appellant for a
2. The pleader, in drafting the complaint, in effect, at least, may be said to charge several acts of negligence on the part of appellant, whereby it is sought to show that the place where the decedent worked was unsafe at the time of the accident. In a case where several acts of negligence are sufficiently alleged in the complaint, a recovery upon the trial will be justified if it be established that the injury complained of was the result of one or more, of said acts. Long v. Doxey (1875), 50 Ind. 385; Diamond Block Coal Co. v. Edmonson (1896), 14 Ind. App. 594, and cases there cited; Standard Oil Co. v. Bowker (1895), 141 Ind. 12; 14 Ency. Pl. and Pr., 345.
3. As previously said, the theory of the pleading is that appellant had violated its duty in not providing.and maintaining a reasonably safe place for the decedent to perform the duties which it exacted of him. It is settled that this is a duty which the master can not delegate to another, and thereby relieve himself from liability to an injured servant who is free from contributory negligence. Whether the master makes no. provision for thedischarge of this duty, or charges the performance thereof to another, the negligence, if any, is the master’s, because it is his duty which is neglected. Southern Ind. R. Co. v. Martin (1903), 160 Ind. 280.
4. It is alleged in the complaint that, by reason of the distance between the switch track, and the extent to which freight-cars protruded over and beyond the track, the open space between the cars when running or standing on adjacent tracks, like No. 2 and No. 3, did not exceed three feet, and thereby the space between the cars was rendered insufficient for brakemen to discharge their duties in said yard with reasonable safety. It will be observed that the com
5. The rule affirmed by repeated decisions of this court is that a general averment of negligence has a technical signification, and, in an action for negligence, if a legal duty and a violation thereof arp disclosed, the general averment of the negligence complained of will be sufficient on demurrer. Ohio, etc., R. Co. v. Walker (1888), 113 Ind. 196, 3 Am. St. 638; Ohio, etc., R. Co. v. Collarn (1881), 73
6. 'Without further comments, we pass to the consideration of the contention that the pleading, under the facts therein, fails to show that Coombs, the deceased, did not as.sume the risk incident to.the proximity of the tracks to each other. It will bo observed that one of the grounds of negligence which the complaint apparently seeks to combine with others to establish that the premises where the deceased was at work in the line of his duty at the time of the fatal accident were rendered unsafe is the proximity to each other of tracks No. 2 and No. 3 in the switch yard. The paragraph is open to the objection, however, that it wholly fails to show in any manner that prior to the accident the deceased was ignorant of the alleged condition of these tracks. Therefore, under the circumstances, he, as appellant’s servant, must be held to have assumed whatever risk or danger is attributable to the unsafe condition of the tracks in question. Consolidated Stone Co. v. Summit (1899), 152 Ind. 297, and cases there cited; Pennsylvania Co. v. Ebaugh (1899), 152 Ind. 531; Davis Coal Co. v. Polland (1902), 158 Ind. 607; Chicago, etc., R. Co. v. Glover (1900) , 154 Ind. 584.
In the case last cited this court said: “Under the allegations of the complaint appellee was required to prove not only that the decedent had no knowledge of said defects, but that he could not have known them by the exercise of ordinary care. * * * If he had knowledge of said defects and danger, or could have had such knowledge by the exercise of ordinary care, then he assumed the risks resulting therefrom, if thereafter he voluntarily continued in the service.”
If we consider the condition in which it is alleged appellant constructed and maintained the tracks in controversy as a separate and distinct ground or act of negligence which rendered unsafe the place where the decedent was at work
Appellant’s motion for judgment in its favor on the interrogatories was properly denied. The other questions discussed by counsel are passed without consideration, for the reason that they may not arise on another trial.
For the error of the court in overruling the demurrer, the judgment is reversed, and the cause is remanded to the lower court, with instructions to sustain the demurrer to each paragraph of the complaint, with leave to appellee, upon her request, to file an amended complaint.