24 Ind. 411 | Ind. | 1865
The appellee filed his complaint in the Court of Common Pleas of Vanderburgh county, alleging “that
A demurrer was filed to the complaint, which was overruled by the court. Issues were formed, and a trial resulted in a verdict and judgment for the plaintiff*.
The counsel for the appellant insist that there is no sufficient averment in the complaint, that the plaintiff did not, by his own fault or negligence, contribute to the injury received. In the case of The Indianapolis, Pittsburgh & Cleveland Railroad Co. v. Keeley’s Adm’r, 23 Ind. 133, the averment was that “the said William II. Keeley, deceased, was lawfully upon the track of said railroad, at a point within the city of Indianapolis.” In commenting upon this allegation, the court used this language: “ This averment cannot be construed into an allegation that he was not in fault. The defendant’s locomotive, and the engineer in charge of it, were, doubtless, lawfully on the track of the railroad; but the complaint is, that so being there, by the carelessness and negligence of those in
The judgment is reversed, at appellee’s costs, with directions to the Court of Common Pleas to sustain the demurrer to the complaint.