171 Ind. 465 | Ind. | 1908
Appellee sued to recover for personal injuries attributed to the negligence of appellant’s servants. The complaint consists of two paragraphs, to each of which appellant unsuccessfully demurred for want of sufficient facts to constitute a cause of action. An answer in five paragraphs was filed, the first of which was the general denial. A demurrer by appellee was sustained to the second and fifth paragraphs of this answer. Reply, the general denial; trial by jury; verdict in favor of appellee for $7,000. Along with this general verdict answers were returned by the jury to a number of interrogatories. Appellant unsuccessfully moved for judgment in its favor upon these findings. It also moved for a new trial, which motion was denied, and judgment was rendered upon the verdict.
The errors of the Montgomery Circuit Court assigned in the appeal to the Appellate Court are: (1) Overruling the demurrer to each paragraph of the complaint; (2) overruling the motion for judgment on the interrogatories; (8) overruling the motion for a new trial. Proper errors are assigned in the appeal taken from the Appellate to the Supreme Court.
We state so much of the first paragraph of the complaint as, appellee asserts, establishes that, at the time he sustained the injuries of which he complains, the relation of carrier and passenger existed between him and appellant. The paragraph alleges that “the defendant is now, and for several years last past has been, a railway company incorporated under the laws of the State of Indiana, and during such time has owned and operated a railway as a common carrier of passengers and freight for hire between Chicago, Illinois, and Louisville, Kentucky, through Montgomery and other counties in Indiana; that for six years prior to and. throughout the month of January, 1902, plaintiff was in the employ of Havens Brothers, a firm of poultry dealers, who resided and had their principal place of business in the town of Ladoga, Montgomery county, Indiana, and he had
Here follow averments going to show the negligence of appellant’s servants in uncoupling and leaving said poultry car on the track in the darkness of the night without leaving any one in charge thereof, and without placing a signal-light to indicate to the engineer the presence of said car, on account of which negligence the .locomotive collided with said poultry car in which plaintiff was in charge of the poultry, which collision resulted in the injuries of which he complains. The complaint then alleges “that at no time during all said time did the defendant ever issue to the plaintiff in charge of said shipments of poultry any pass, but sometimes an indorsement or memorandum was made on the bill of lading, in substance: ‘Pass man in charge,’ or ‘Pass one in charge,’ but during said time it was the general usage and
The bill of lading set forth and made a part of the com
“Bill of Lading, No. 91. Gosport, 1/31/1902.
Received from Havens Brothers by the Chicago, Indianapolis & Louisville Railway Company the property described below, in apparent good order, * * * consigned and destined as indicated below, which said company agrees to carry to said destination if on its road; otherwise to deliver to another carrier on the route to said destination. It is mutually agreed, in consideration of the rate of freight hereinafter named as to each carrier, on all or any of said property over all or any portion of said route to destination and as to each party at any time interested in all or any of said property, that every service to be performed hereunder shall be subject to all the conditions, whether printed or written, indorsed hereon, and which are hereby agreed to by the shipper and by him accepted for himself and his assigns as just and reasonable. [Here follow numerous conditions upon which the bill of lading declares the property is received for trahsportation by the Chicago, Indianapolis & Louisville Railway Company. Among these conditions are the following:] No carrier or party in possession of all or any of the property herein described shall be liable for any loss thereof or damage thereto by causes beyond its control or by floods, etc.. The owner or consignee shall pay the freight at the rate hereon' stated, and all other charges accruing on said property before delivery,” etc.
This bill of lading is entirely silent in respect to the shipper’s assuming the cafe and feeding of said poultry during its transportation, or that a man is to be sent as a caretaker thereof, or as to any direction to pass any one in charge of said poultry. There is nothing in said bill of lading in any manner stipulating that appellant was to be relieved of caring for, feeding and watering said poultry during the transportation thereof.
The second paragraph alleges that the defendant is a common carrier, etc.; that it is engaged in operating a railway as a common carrier of passengers and freight through
Conceding, as we may, without deciding, that the first paragraph of the complaint is sufficient to state a right of action in favor of appellee, or, in other words, that the usage, as alleged in the pleading, by which Havens Brothers and appellant were controlled in the shipment of poultry prior to the happening of the injury of which appellee complains, entered into and formed a part of the bill of lading in question and thereby the duty to care for the poultry in controversy was assumed by Havens Brothers, the shippers, and therefore, they were authorized to place appellee, their employe, in the car in which the poultry was shipped, as a caretaker, and hence he was upon said car as a passenger for hire, we pass to the consideration of the evidence and the answers to certain interrogatories to the jury.
The evidence establishes, and the jury specially found,
There being a failure of proof to sustain material facts as alleged in the first paragraph of the complaint, appellee was not entitled-to a recovery thereon. It follows that the trial court erred in denying the motion for a new trial.
Judgment reversed, with instructions to grant appellant a new trial.