163 Ind. 631 | Ind. | 1904
Action by the appellee, as administratrix of the estate of Charles Coyer, deceased, against the appellant, the Pennsylvania Company, for damages for a personal injury resulting in the death of Coyer. Demurrer to each paragraph of complaint overruled. Answer in denial. Trial by a jury. Verdict for appellee, with answers to interrogatories. Motion for judgment on special answers, and for a new trial overruled. Judgment on verdict. All questions discussed in brief of counsel for appellant are properly presented by the assignment of errors.
The complaint charged that the death of Charles Coyer, appellee’s decedent, was caused by the wrongful act and omission of the appellant. Each of its three paragraphs alleged, among other things, that Coyer, an employe of a firm engaged in the construction of a second tract for ap
The first objection to the complaint by counsel for appellant is that it does not show that the next of kin suffered any injury for which the law will award damages. The action is founded upon §285 Burns 1901, which authorizes the personal representative1 of one whose death is caused by the wrongful act or omission of another to maintain an action therefor in certain cases, and which provides that the damages must inure to the exclusive benefit of the widow or widower (as the case may he) and children, if any, or next of kin, to he distributed in the same manner as personal property of the deceased. It has never- been held in this State that the complaint must show the fact that the widow, widower, children, or next of kin of the deceased had a pecuniary interest in his life, or the nature or extent of that interest.
Again, in the Jeffersonville, etc., R. Co. v. Hendricks (1872), 41 Ind. 48, 77, this court said: “We are of the opinion that it will be sufficient to allege in the complaint, and prove on the trial, that there are persons who are entitled, under the statute, to the damages. We hold that it is not necessary to give the names of such persons in the complaint, but such allegation would not vitiate.”
It' was averred in the complaint under review that the deceased was unmarried, that he died intestate, and that he left surviving him, as his heii’s at law and next of kin, his mother and brothers and sisters, naming each of them.
It is next contended that the complaint does not show that Coyer was a passenger, nor that he was otherwise rightfully upon the train, so as to make appellant liable upon the ground of negligence. It does appear that he was not an employe of the appellant, and the averment is that he was in the habit of riding upon the train, and was in the caboose with the knowledge and consent of the defendant company for the purpose of being carried to his home. If he was on the work train with the knowledge and consent of the appellant for this purpose, he was neither a trespasser, a licensee, nor a servant of the company. Although he paid no fare, he was a person carried gratuitously, and the appellant was bound to exercise at least ordinary care for his safety. Gillenwater v. Madison, etc., R. Co. (1854), 5 Ind. 339, 61 Am. Dec. 101; Louisville, etc., R. Co. v. Taylor (1890), 126 Ind. 126, 130; Cleveland, etc., R. Co. v. Ketcham (1893), 133 Ind. 346, 36 Am. St. 550, 19 L. R. A. 339; Ohio, etc., R. Co. v. Selby (1874), 47 Ind. 471, 17 Am. Rep. 719; Ohio, etc., R. Co. v. Nickless
, While many of the special answers of .the jury were apparently antagonistic to the general verdict, they were not irreconcilable with it. Evidence might' have been introduced under the issues which would have rendered them consistent with the conclusion that the appellee was entitled to recover upon the pleadings. Princeton Coal, etc., Co. v. Roll (1904), 162 Ind. 115; Albany Land Co. v. Rickel (1904), 162 Ind. 222, 228.
Bid the court' err in overruling appellant’s motion for a new trial ? One of the reasons assigned for the motion was that the verdict was not sustained by sufficient evidence. It will not be necessary to set out or consider the evidence in detail, as we think there was a failure of proof upon a vital point, which must cause a reversal of the judgment. The complaint, as we have seen, alleged that Coyer, with the consent of the appellant, went upon the work train with the permission of appellant’s servants in charge of said train, the custom being to convey Ooyer and other employes of P. T. Clifford & Spns, the contractors, to and from their work.
Many of the instructions given by the court are complained of as erroneous. The nineteenth was in these words: “It is charged in the complaint that while said Charles Coyer worked for P. T. Clifford & Sons upon the
Graham v. Toronto, etc., R. Co. (1874), 23 U. C. C. P. 541, cited by tbe court in Hoar v. Maine Cent. R. Co., 70 Me. 65, 35 Am. Rep. 299, is much in point upon the question we are now considering. There tbe defendants agreed with tbe contractor for tbe construction of their railway to furnish a construction train for ballasting and laying tbe track for a portion of their road then under construction ; tbe company to provide tbe conductors, engineer, and fireman; the contractors to furnish tbe brakemen. On October 31, 1872, after work for tbe day was over, and tbe train was returning to Owen Sound where tbe plaintiff, one of tbe contractor’s workmen, lived, tbe plaintiff, with tbe permission of the'conductor, but without the authority of tbe defendant, got on. Through tbe negligence of tbe person in charge of tbe train an accident happened, and tbe plaintiff was injured. In deciding tbe case, Hogarty, O. J., said: “The fact that tbe defendants’ engine driver or conductor allowed them to get on tbe platform does not, in my view, alter the case. I can not distinguish it from the case of a cart sent by its owner under bis servant’s care to haul brides or lumber to a bouse he is building. A workman, either with tbe driver’s assent, or without any objections from him, gets upon the cart. It breaks down, or by careless driving runs against another .vehicle, or a lamppost, and tbe workman is injured. I can not understand by what process of reasoning tbe owner can in such case be held to incur any liability to tbe person injured. ÜSTor, in my opinion, would tbe fact.that the owner was aware that tbe driver of bis cart often let a friend or a person doing work at bis bouse drive in tbe cart, make any difference. * * * It never could, I think, be in tbe reasonable contemplation of these defendants, that they were incurring any liability as carriers of passengers, or
A similar question arose in Sheerman v. Toronto, etc., R. Co. (1874), 34 U. C. Q. B. 451, where one of the workmen was being carried, without reward, on a gravel train, and was injured so that he died. It was held that the deceased was not lawfully upon the car with the consent of the defendant, and a nonsuit was directed. “The workmen,” observes Wilson, J., “were not lawfully on the cars. They were not passengers being carried by the defendants. They were acting at their own risk — not at the risk of the defendants ; and, however unfortunate this disaster may have been, it is only right the legal responsibility should fall on those who ought to bear it', and not upon those on whom it does not rest.” In this case it' appeared that it was not necessary that the defendants should carry the men to and from their work, and that they never agreed to do more than to provide cars for carrying ballasting and material for track laying. No one becomes a passenger except by the consent, express or implied, of the carrier.
In Duff v. Allegheny Valley R. Co. (1879), 91 Pa. St. 458, 36 Am. Rep. 675, the facts were that the conductor of an accommodation train, at the request of a brakeman, permitted a lad of fifteen to ride free, daily, on the train to sell newspapers. Under the company’s rules this was beyond the scope of the condirctor’s authority. After this practice had continued five or six months, the boy was killed in an accident to the train (caused by the alleged negligence of the company). In an action by the boy’s mother to recover damages, it was held that, under the evidence, the boy was neither a passenger nor an employe, but was a mere trespasser, to whom the company owed no duty, and that the plaintiff could not recover. Springer v. Byram (1894), 137 Ind. 15, 27, 23 L. R. A. 244, 45 Am. St. 159; Elliott, Railroads, §1580.
Eor the error of the court in overruling the motion for a new trial the judgment is reversed, with direction to tire court to sustain the motion, and for further proceedings not inconsistent with this opinion.
-, Gillett, J., did not participate in this decision.
