143 Ind. 647 | Ind. | 1894
This was a suit by the appellee against the appellant to recover damages on account of the
The complaint was in three paragraphs, a demurrer to each of which was overruled, and that ruling is assigned for error in this court. The first paragraph, omitting the formal parts, reads as follows: ‘ That the decedent, George J. Krapf, on the 29th day of July, 1890, and for thirty-seven years prior thereto, was an employe of the Indianapolis and St. Louis Railway Company as an engineer, and on said day, and for a long time prior thereto, was employed as a switch engineer in the switching yards of said railway company in the city of Terre Haute, Indiana; that on said day, and for many years prior thereto, there was an agreement and contract for a valuable consideration between the said railroad company and the said defendant, the Evansville-and Terre Haute Railroad Company, that all cars of defendant which should come into or be found in the yards of said Indianapolis and St. Louis Railway Company in said city should be delivered by said Indianapolis and St. Louis Railway Company to defendant in the switching yards of defendant in said city, and for said purpose the said Indianapolis and St. Louis Railway Company had the right and was accustomed, by the terms of said contract, to enter upon the land of said defendant at all hours; that pursuant to said agreement, on the day aforesaid, the decedent, by the direction of his employer, pulled a train of freight cars belonging to defendant from the yards of his employer to the yards of defendant for the purpose of delivering the same to defendant, the decedent acting at his post of duty as engineer of the engine attached thereto; that decedent run his said train into the said yards of defendant upon the main track thereof, as had been the custom to dó theretofore, as he had a right
It is contended that each of the paragraphs is" bad, because the allegations are not sufficient to show absence of contributory negligence on the part of the appellee’s decedent. To constitute a good cause of action for negligence resulting in a personal injury, two essential facts must be shown in the complaint.as concurring, namely, that the injury was caused by the negligence of the defendant and the absence of contributory negligence on the part of the plaintiff; that is, absence of contributory negligence on the part of the plaintiff is as much a part of his cause of action as the presence of negligence on the part of the defendant. It is contended by appellant that there is nothing in either of the three paragraphs of the complaint to show that the appellant’s backing train of freight cars was not in plain view of the deceased engineer, Krapf, in ample time to have enabled him to have stopped his train and avoided the collision, and thereby avoided all injury to himself; hence it is claimed that the absence of contributory negligence on the part of appellee’s decedent is not sufficiently shown in the complaint. But each paragraph states that the injury was inflicted without the fault or negligence of the appellee.
In Pittsburgh, etc., R. W. Co. v. Wright, 80 Ind. 182, at page 184, this court said : “The averment that the plaintiff was without fault is of a technical character, and admits of any legitimate proof by which its truth can be established; and; as matter of pleading, it makes the complaint good in that respect, against all mere inferences of contributory negligence, unless the inference arises as a necessary legal conclusion from the facts stated.” To the same effect are Town of Rushville v. Adams, 107 Ind. 475 (478); Town of Salem,
The facts alleged here do not necessarily raise any inference of contributory fault, and therefore do not overcome the technical allegation that the appellee was without fault on his part. That allegation would admit proof that the deceased was in such a situation on account of obstacles or otherwise that he could not see the approach of appellant’s train in time to avoid the collision and injury, and that he had no reason to anticipate the approach of such train. We, therefore, hold that the several paragraphs of the complaint sufficiently show the absence of contributory negligence on the part of appellee’s decedent.
It remains to inquire whether they, or any of them, sufficiently show negligence on the part of the appellant, causing the injury complained of.
The allegations of the first paragraph specifically confine the charge of negligence to the use of a car in the appellant’s train which was alleged to be worthless with rotten timbers, to which was attached a defective and insecure draw-bar.
There is nothing in the first paragraph of the complaint showing that the alleged resultant injury was produced by the use of the alleged defective draw-bar and coupling appliances; that is, nothing to show that without such use the injury would not have occurred.
The substance of the charge is that the appellant’s train was being, run backward, meeting the decedent’s train, drawn forward on the same track at the rate of four miles an hour, and decedent on seeing appellant’s train approaching backward at the rate of eight miles an hour, signaled it to stop; both engines were reversed, and the decedent whistled for down brakes, and that on the reversal of appellant’s engine seven cars broke loose from appellant’s train, and by their acquired momentum ran into and against the engine of said decedent, who, remaining at his post of duty, was killed: There is no showing whether the balance of the approaching train of appellant had its momentum checked so as to avoid the collision with decedent’s engine in case there had been no breaking loose of the seven cars. For aught that appears in this paragraph of the complaint, the balance of the train was not sufficiently checked in its momentum to prevent it from colliding with decedent’s engine. In other words, the facts stated in this paragraph do not inform the court whether the breaking of the draw-bar and coupling appliances made any difference in the disaster that happened. We are not informed by direct averment that the momentum of the balance of the train was in the least checked. We may infer that it was checked to some extent by the statement that upon the reversal of appellant’s engine the seven cars broke loose. But that is a matter of mere inference or argument from the' fact stated that upon the reversal of the engine the cars broke loose. Pleadings should state facts upon which issue can be taken, and not mere inferences or
It is said in 1 Shear and Red. on Neg., section 26, that “The breach of duty, upon which an action is brought, must be not only the cause, but the proximate cause, of the damage to the plaintiff. * * * * The proximate cause of an event must be understood to be that which, in a natural and continuous sequence, unbroken by any new cause, produces the event, and without which that event would not have occurred.”
To the same effect are 16 Am. and Eng. Ency. of Law, and cases there cited. ,
It is not shown by any facts stated in the first paragraph, that the injury complained of would not have occurred just as it did without the defective draw-bar and coupling appliances, and without the seven cars breaking loose from the balance of the train of appellant. For these reasons we are of opinion that the trial court erred in overruling the demurrer to the first paragraph of the complaint.
The second and third paragraphs are the same in all respects as the first, except that they add an element of negligence not contained in the first, namely, in the second: “That the appellant was carelessly and negligently backing a train of twenty-four cars, having carelessly and negligently failed and omitted to provide
The third is the same as the second, with the additional averments that: “The consideration for the agreement was the delivery by the I. & St. L. R. W. Oo. of said cars as aforesaid, and the permission by said I. & St. L. R. W. Go. to the appellant to the use and run of the tracks and switches of the I. & St. L. R. W. Oo. for the purpose of delivering cars of the I. & St. L. R. W. Go., found in the yards of appellant in a similar manner as aforesaid, which was on that day, and for a long time prior thereto had been, the custom to do. ”
It will be observed that the several acts, breaches and omissions of alleged duty charged against appellant in the second and third paragraphs, not contained in the first, are alleged to have been negligently done and omitted by the appellant and without the fault of the decedent. . 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
We are, therefore, of opinion that the second and third paragraphs of the complaint each states facts sufficient to constitute a cause of action, and that the trial court did not err in overruling the demurrer to each of them.
The principal question discussed by appellant’s counsel relates to the sufficiency of the evidence to support the verdict.
It is contended that it' is insufficient, and that, therefore, the court erred in overruling the motion for a new trial. The undisputed evidence shows that by mutual consent, practice, and custom, the two railroad companies had for a great many years been in the habit of daily returning cars found in the switchyards of each belonging to the other, and for such purpose each company had and enjoyed the same privilege of running the engines of each into the switchyards of the other to take cars home as if each company owned both switch-yards. The switchyards had many tracks in them. The time to take cars home was about 9 or 10 o’clock A. m., and often in the afternoon of each day when there was any cars in either yard belonging in the other. At the usual hour, on the 29th day of July, 1890, the decedent, who was the switch engineer of the I. & St. L. R. W. Co., and had been for thirty-seven years,
The main track of appellant’s switchyard was the one generally used for going into and coming out of said yard with cars. It ran in a southerly direction, the I. & St. L. R. W. Co. ’s yards being in a northerly direction from appellant’s yards. There were tracks parallel with the main track of the switchyard of appellant, and it curved in such a manner as that when box cars stood on the parallel track next to it, which was the case at the time the injury occurred, those in charge of each train could not see the approach of the other until they came within seven car lengths of each other; and there was evidence from which the jury might have found that appellant’s train was backing at the rate of seven or eight miles' an hour and the decedent’s train was being drawn forward at the rate of seven or eight miles an hour when they came in sight of each other; and, on the other hand,' there was evidence from which the jury might have found that appellant’s train was hacking at the rate of only four miles an hour, and that the decedent’s train was being drawn forward by his engine at the rate of eight miles an hour when they came in sight of those in charge of each. Both trains were equipped with air and other brakes. The appellant’s train had three brakemen stationed on top of the cars at proper places along the train so as to give effec
On the discovery of each other by those in charge of each train, which took place as soon as they came in sight, some seven or eight car lengths apart, the signal for brakes and to stop was given by each when they were about that distance apart, both engines were reversed, the air and other brakes applied on each, the decedent’s train running forward thereafter three or four car lengths, when seven cars that broke loose from appellant’s train collided with decedent’s engine, thereby causing his death. A car length, including the coupling space, is about thirty-three feet. On the reversal of appellant’s engine the draw-bar pin in the front end of the seventh car from the rear end of appellant’s train broke, which caused the draw-bar to pull out of that car and let the seven cars from the rear end of appellant’s train loose therefrom; and their momentum derived from the velocity of appellant’s train carried them on until they came in contact with decedent’s engine, causing the collision and death as above stated. The persons in charge of each train, including decedent, used all reasonable diligence and efforts to stop their respective trains after the discovery of the approach of each and before the collision. The balance of appellant’s train, after the seven cars broke loose therefrom, was stopped still six or seven car lengths from the portion that collided with decedent’s engine; and the undisputed evidence shows that if the draw-bar pin had not broken the whole train could and would have been stopped in time to avoid the collision. The decedent’s
The undisputed evidence shows that the draw-bar and pin were in good condition and such as are in daily use by well regulated railroads, and that the whole coupling appliances were sound and in good condition, including the timbers of the car to which they were attached.
Therefore, the charge of negligence in the use of the draw-bar and pin and coupling appliances is not established by the evidence. The evidence does establish, however, that the proximate cause of the injury complained of was the breaking of the draw-bar pin, without which the injury would not have occurred. The breaking of the pin, therefore, was an inevitable accident. A party is not liable for the consequences of such an accident unless his want of due care and his negligence concur with such accident in producing the injurious consequences, and unless without his negligence the injury would not have been caused by the accident alone. In other words, if the accident and want of ordinary care concur in producing an injury, or if the negligence induces the accident by which the injury is produced, the negligent person is liable for the consequences, if without his negligence the injury would not have been caused. 16 Am. and Eng. Ency. of Law, 396, and cases there cited; 1 Shear, and Redf. Neg., sections 33-16; Whart. Neg., sections 123, 559, 116; 22 Thomp. Neg., page 1085, section 3; Wabash, etc., R. W. Co. v. Locke, 112 Ind. 404.
The question therefore arises whether the appellant’s servants were guilty of negligence in running appellant’s train in the manner and under the circumstances they did at the time of the injury; and, if it was negligence, whether that negligence concurred with and induced the accident of the breaking of the draw-bar
It is earnestly insisted by the appellee’s learned counsel, that under the circumstances of the obstruction of the view of the main track of appellant’s switchyard by the sharp curve therein and the box cars standing on the track parallel therewith so that those in charge of either train could not see the approach of the other until within seven car lengths of each other, due
We are of opinion that this contention is fully justified by the law. It follows that appellant’s servants were negligent in not taking such precautions as were reasonable and necessary to avoid injury to themselves and those they were liable to encounter in going around the curve, and that negligence was concurrent with, and induced the accident of, the breaking of the draw-bar pin and coupling appliances, which separated the seven cars from the balance of the train, thereby producing the collision and death of appellee’s decedent. That makes out the case of negligence charged in the complaint against the appellant. But that is not all, or the complete cause of action charged in the complaint. It is also charged in the several paragraphs thereof, and without which neither paragraph would have been good, that the decedent was without fault or negligence. The same principles of law apply to his conduct in running his train on that occasion that apply to the conduct of appellant’s servants in running theirs. The evidence clearly shows that he had the same reason to apprehend and expect that he might or would encounter moving trains around that curve, that appellant’s servants had, and knew as well as they did, all about the danger, and that those in charge of such trains could not see each other until within seven or eight car lengths of a collision. And yet he moved his engine and train on at the rate of seven or eight miles an hour, just as if no possible danger confronted him,
He had no greater rights in that yard than the servants of its owner had. Concede that he had equal rights with them in the use of the yard in bringing home cars, and yet he was under the same obligation resting upon them to exercise due care and precaution for his own safety and that of others in charge of trains he might encounter.
The Union R. W. and Transit Co. v. Shacklet, Admx., 119 Ill. 232, in many respects is very much like this case, and it is decisive of the question of contributory negligence on the part of decedent in this case. Elijah E. Shacklet and his brother, in September, 1879, were shippers and dealers in live stock and shipped four car loads of cattle from Missouri to the National Stock Yards in East St. Louis. The Shacklets rode in a caboose attached to the train until they reached the union depot in St. Louis where they were told to change cars. The cars containing their cattle were then detached from the Missouri Pacific train and turned over to the Union R. W. & Transit Oo. to be taken by it to the National Stock Yards in East St. Louis. The train of the Transit Company, in which the detached cars were placed for this purpose, had on this occasion no caboose attached to it for the accommodation of the shippers, though the evidence showed a caboose was sometimes provided for this purpose. They were
In the case at bar, the decedent occupies the exact situation that the Transit Company did in the case from which we have just quoted, and the appellant occupies very much the same position occupied by the Wabash Company.
It may be that appellant was more culpable than the decedent, but the case referred to establishes that decedent was also guilty of negligence in failing to take such precautions as were easily within his power to secure his own safety and avoid injury to others. In this case as in the Illinois case, those in charge of both trains were guilty of negligence. And the negligence
