194 Ind. 56 | Ind. | 1923
Edward Atwood, while acting as a locomotive fireman, was killed by the derailment of his engine in the city of Evansville, Indiana, on December 8, 1917. Laura V. Atwood, his widow, was appointed
The complaint, omitting the formal parts thereof, alleges, in substance, that at the time of the injury-complained of, the defendant, as receiver, was in charge of and operating a certain line of steam railroad known as the Chicago and Eastern Illinois Railroad, extending from Evansville, Indiana, to Chicago, Illinois. That the decedent, Edward Atwood, was on December 8, 1917, in the employ of said receiver as a locomotive fireman. That on said date of December 8, 1917, said William J.- Jackson, receiver as aforesaid, and his officers, agents and servants in charge of the management and operation of said railroad, each and all carelessly and negligently suffered and permitted the main track of said railroad to become obstructed at the point where said track crosses Division and Rowley streets in the city of Evansville, County of Vanderburgh, State of Indiana, and for a distance of 300 feet on each side of said crossing, to become and remain in a dangerous and unsafe condition and to have a great number of old, rotten and defective cross-ties under the rails of said track, which cross-ties, were insufficient to support and maintain said track in a firm and safe position while trains were passing thereon and while trains and engines were crossing or passing on the same, and each and all of said officers, agents and servants carelessly and negligently suffered and permitted the rail joints at said places to become so loose'that rails at said joints would go down under the weight of a locomotive engine, causing the same to sway from side to side in pass
There was a demand for damages in the sum of $50,000. A demurrer was filed to the complaint for want of facts. The demurrer was overruled and appellant excepted. The defendant, Jackson, filed an answer in two paragraphs. First, that the cause of action did not accrue within two years next before the commencement of this action; second, general denial. The reply to the first paragraph of defendant’s answer was a general denial. Trial was had on these issues.
Appellant’s memorandum filed with the demurrer to the complaint says that the complaint does not state in plain and concise language that the alleged injuries and death of decedent was the direct result of negligence or violation of any duty imposed by the common law or by statute, ordinance, rule, regulation, or direction. That the pretended allegations of the complaint are by way of recital and not by positive averment and are but statements of conclusions. That it is not. sufficiently averred that the alleged negligence of the defendant was the proximate cause of said injury and death, nor that this defendant had knowledge and the plaintiff’s decedent did not have knowledge of any of the dangers, defects, acts or omissions alleged to have been the cause of decedent’s injury and death. This action was brought under the Federal Employers’ Liability Act.
The complaint sufficiently charges the violation of a federal statute. See §§8605, 8660 U. S. Comp. Stat. 1918, 27 Stat. at L. 531, ch. 96, §1, 35 Stat. at L. 66, ch. 149, §4. The complaint states facts sufficient to show that, at the time of the injury to appellee’s intestate, appellant was violating the Federal Safety Appliance Act, in this, that the locomotive
Appellant asserts that the verdict of the jury is not sustained by sufficient evidence and is contrary to law. It appears from the evidence that Edward At-wood was employed as a fireman of a locomotive engine by the receiver of the Chicago and Eastern Illinois Railroad Company, and that, at the time of the injury which caused his .death, he was engaged in ■ helping to move a passenger train operating on said railroad in interstate commerce. The locomotive engine on which he was working was derailed in Evansville, and overturned, thus causing his injury and death. There is evidence to the effect that the train ran over a defective and dangerous track with low joints, obstructed by snow and ice and frozen mud, and that there were three engines attached to the train, which was being moved from the Louisville and Nashville station to the Chicago and Eastern Illinois station. The evidence is to the effect that the locomotive on which decedent was
Frank McBryan, a witness for defendant railway, testified that a .train equipped as this one with air brakes and locomotive engine and appliances could have been stopped in ten or fifteen feet. That he saw the accident and that the engine on which Atwood was killed was pushed probably sixty feet. The head engine should have been connected with the air as that is the proper way to control the engine and is the customary way.
Another witness testified that when the air is connected up between the engine and train, in case of emergency, the head engine can stop the train quickly. If the train is broken, the breaking of the air hose sets the brakes automatically and stops the train at once.
Another witness testified that if the air had been connected with the rest of the train, the train would have stopped immediately when the air become disconnected or broken and would have stopped within ten or fifteen feet.
The appellant contends that the evidence shows that decedent knew of, or had ample opportunity to know of, the hazards and dangers of the work in which he was engaged when he lost his life. That, with such knowledge, he assumed the risks incident thereto.
Section 4, of ch. 149, Act April 22, 1908, 35 Stat. at L. 66, supra,, being an act relating to liability of common carriers by railroads to their employees in certain cases, provides, “That in any action brought against any common carrier under or by virtue of any of the provisions of this act to recover. damages for injuries to, or the death of, any of its employees, such employee shall not be held to have assumed the risk of his employment in any case where the violation by such common carrier of any statute enacted for the safety of employees contributed to the injury or death of such employee.”
The allegations of the complaint are direct and positive as to the violation of the Federal statute, and in such case there is no assumption of risk by décedent. Boldt, Admx., of Boldt v. Pennsylvania R. Co. (1917), 245 U. S. 441.
So far as regards, the defective condition of the track as alleged in the .complaint and proven by the evidence, there was evidence which justified the jury in drawing the inference that appellee’s de
It clearly appears from the evidence that the receiver at the time appellee’s decedent received his fatal injury was operating a train in interstate commerce composed of five cars and three locomotives, and that all of said cars and locomotives were equipped with power-brakes and were capable of having said power-brakes connected up continuously with the front locomotive so as to enable the engineer thereof to control the movement of the train. It also appears that the train was operated without the power brakes being connected up with the front locomotive or with the one immediately in the
It is claimed by appellee that the judgment should be upheld on both the charge of the violation of the federal statute and the allegations as to common-law negligence; and that, on either view of the complaint, there is no reversible error. It is conceded that the complaint is defective, if regarded as based on common-law negligence alone, for the reason that- it does not allege facts sufficient to show that appellee’s decedent did not assume the risk of damages arising from the defective condition of the track but this 'defect in the complaint is cured by the evidence. Jackson, Rec., v. Rutledge (1919), 188 Ind. 415; Prudential Ins. Co. v. Ritchey (1918), 188 Ind. 157; Pittsburgh, etc., R. Co. v. Home Ins. Co. (1915), 183 Ind. 355, Ann. Cas. 1918A 828; Crawfordsville Trust Co. v. Ramsey (1912), 178 Ind. 258; Noble v. Davison (1911), 177 Ind. 19; Euler v. Euler (1913), 55 Ind. App. 547.
Appellant contends that instruction No. 22 given at the request of appellant and No. 5 given at the request of appellee are inconsistent and misleading but does not point out such inconsistency. Said instruction No. 22 is as follows: “If you find from the evidence that the plaintiff’s decedent went upon the engine of the defendant, knowing that the track over which the said engine was to run was dangerous by
Said instruction No. 5 was given as bearing upon the negligence of defendant if the train was operated in a negligent manner in. violation of a federal statute. It is as follows: “I instruct you that if you find from the evidence that the defendant on the 8th day of December, 1917, was engaged in the business of interstate commerce, and operating a line of steam railroad, extending from the city of Evansville, Indiana, to the city of Chicago, Illinois, as a common carrier of freight and passengers for hire, and that on said day the defendant carelessly and negligently failed to properly connect its engine and cars with proper air brake connection, so that the engineer pulling said train could properly apply the air and properly control the movement of said train, and that while so operating said train in said negligent manner and in violation of the Federal Statute, the plaintiff was injured as alleged in his complaint by reason of said violation of said statute then I instruct you that the quéstion of contributory negligence and the
We find nothing inconsistent or misleading in these instructions. They were given upon separate and distinct allegations of negligence in the complaint and were within the issues presented by the pleadings.
Appellant claims that the damages assessed are excessive and that instruction No. 5 given by the court of its own motion was erroneous. Said instruction is as follows: “In the event that you should find from a preponderance of the evidence that the plaintiff is entitled to recover, then you should assess her damage in such a sum as would compensate her for the injury herein sustained, and in arriving at this amount you have a right to take into consideration the amount of money the decedent was earning at the time of his death, and whether or not he applied that money to the support of his family, his character, his' habits for industry and sobriety, and from all the facts and circumstances say what the measure of the recovery herein should be; not, however, to exceed the sum of $50,000.00 the amounfnamed in the complaint.” Appellant claims that the closing clause of that instruction constitutes reversible error. We do not so view it. The court undoubtedly intended to say that the jury should determine the amount of recovery from a consideration of “all the facts and circumstances (stated).” There can be little doubt that the jury so understood the instruction, and that the damages were determined from a consideration of the elements of damage to which the court referred in the former part of the instruction. It will be observed that the language used directs the jury to consider all the facts and circumstances (presumably referring to those previously stated). It does not tell the jury to consider all the other facts and circumstances in evidence. Expressions of this kind
In Kingan & Co. v. Gleason, supra, the court says: “We think that an instruction directing the jury to consider all the facts and circumstances in the case in estimating the damages to be awarded would be understood to mean that they should consider all the facts and circumstances bearing upon the question of damages, unless the evidence discloses some exceptional facts or circumstances which would probably mislead the jury in estimating the damages. In each of the cases cited, wherein the giving’ of a similar instruction was held to be reversible error, there was evidence as to facts and circumstances which, from their nature, might have influenced the jury improperly in estimating the damages. These facts and circumstances are, in each case, carefully pointed out by the court, and their injurious tendency is emphasized as having an important influence on the conclusion reached. We have examined the record in this case and we find no evidence of any fact or circumstance which would have a tendency to induce the jury to increase the amount of dam
Where facts are allowed to go in evidence which furnish an incorrect basis for the assessment of damages, an instruction which directs the jury to determine the amount of recovery from all the facts will be deemed erroneous and prejudicial. City of Delphi v. Lowery, Admx., supra. But where no such condition appears from evidence, the instruction cannot be regarded as erroneous. Inland Steel Co. v. Gillespie (1914), 181 Ind. 633, 644. In the absence of such a showing by the record, every presumption is indulged in favor of the correctness of the instruction. Vandalia Coal Co. v. Yemm (1910), 175 Ind. 524, 540.
A ruling of the court which is clearly erroneous is presumed to be harmful, in the absence of something in the record showing such ruling to be harmless; but this rule cannot apply to an instruction such as the one under consideration, for the reason that this court cannot hold the instruction to be erroneous unless the evidence discloses such facts as would make it so. Such an instruction is presumed to be correct under the evidence, unless it affirmatively appears that facts were admitted in evidence which probably misled the jury in awarding damages. Vandalia Coal Co. v. Yemm, supra; Kingan & Co. v. Gleason, supra.
In every opinion in which such an instruction has been held to be reversible error, the court has pointed out evidence or circumstances proved of an exceptional nature which might have led the jury into giving punitive damages, or might have otherwise affected the question of damages. Haskell, etc., Car Co. v. Trzop, supra; Kingan & Co. v. Gleason, supra.
Appellant attempts to show that the jury was led to consider conscious suffering by appellee’s decedent after the injury and before his death in awarding dam-ages in this case; but the record wholly fails to sustain his position on this point. Appellant does not claim that there is anything else in the record to show that the instruction was erroneous or harmful. At the request of the appellant, the court gave to the jury the following instructions: “Instruction No. 25. The complaint, among other things charges that after plaintiff’s decedent was caught, crushed and mangled, as set out in the complaint, he suffered great and excruciating, mental and physical pain and anguish and lingered for a space of one hour, during which time he was conscious of his said suffering, and then died as a result thereof. The court instructs you that you cannot assess damages against the defendant in this action on account of such suffering of said decedent.”
In view of the instruction set out, this court cannot assume that the jury disregarded-the admonition therein contained, and that it awarded damages for conscious suffering endured by appellee’s decedent in the face of a positive instruction by the court to the contrary.
Appellant complains of something said by appellee’s attorney in his opening statement to the jury, but no question as to the propriety of such statement is saved by the record. It does not appear that any objection was made at any time to the propriety of such statement, or that the court ruled thereon or that any exceptions were reserved. When the trial court overruled a motion for a new trial it passed on all questions presented by the reasons assigned for a
We have examined all the questions presented in appellant’s brief and find no reversible error in the record. Judgment affirmed.
Townsend, J., absent.