163 Ind. 247 | Ind. | 1904
Lead Opinion
Appellee instituted this action against appellant to recover for an injury to his person. His complaint was in four paragraphs, to each of which appellant unsuccessfully demurred. Issues of fact were joined, and there was a verdict and judgment for appellee.
The errors assigned bring in question the rulings on demurrer above mentioned, the overruling of a motion made by appellant for judgment in its favor on the answers returned by the jury to interrogatories, and the overruling of appellant’s motion for a new trial.
According to all of the paragraphs of complaint, appellee, who Was an employe of appellant as a locomotive engineer, received his injury in the city of Logansport, during the night-time, by being knocked down and run over by a mail-car belonging to appellant, which was being run backwards in appellant’s yards. It is averred in said para
The first paragraph of complaint charges that “it was the duty” of appellant to provide said car with a person stationed on the forward end thereof, as it was being moved, supplied with a proper signal light, to warn appellee and other persons using the grounds between and adjacent to appellant’s tracks, and also to provide said car with an air-brake attachment, so that said ear could be stopped by a brakeman upon the discovery of anyone in imminent peril of life or limb from being run over by said car. It is alleged that appellant negligently and carelessly omitted to take such precautions, and that appellee was run upon and injured by reason of the negligent movement as aforesaid.
The second paragraph of the complaint counts on the negligence of the engineer in control of the locomotive which was moving said mail-car. He is charged with negligently moving said ear backwards without having a person stationed on the end thereof, so as to perceive the first sign of danger, and to signal the engineer, as required by a rule of appellant. Said engineer is also charged in said paragraph with negligence in moving said car in violation pf certain ordinances of the city of Logansport. It is also
In appellee’s third paragraph of complaint it is alleged that “it was the duty” of appellant’s yard conductor, who had charge of said car and the locomotive attached, to take the particular precautions which we have mentioned in connection with our statement as to the first paragraph of complaint. It is further alleged that such yard conductor negligently and carelessly omitted to take such precautions, and that by reason thereof appellee was run upon and injured by said car.
The fourth paragraph of complaint, like the first and third, contains a direct charge as to appellant’s duty to take certain precautions; and it is further alleged that appellant employed an incompetent and inexperienced brakeman or flagman upon said car, knowing him to be incompetent and inexperienced, and that the latter omitted to take the precautions which itTs alleged it was appellant’s duty to take in connection with the movement of said car, and that as a result appellee was run over.
Each of said paragraphs is quite long, and it is but just to appellee’s counsel to state that there has been no attempt upon our part to exhibit all of the details of said paragraphs. It has only been our endeavor to make such a statement concerning them as would furnish a basis for this opinion.
The first paragraph of complaint is insufficient. It is well settled that a complaint for negligence must disclose by proper averments the existence of a duty upon the part of the defendant, or of the person alleged to be negligent, where it is a case of imputed negligence, as, under an employers’ liability act, to exercise care toward the person injured. Muncie Pulp Co. v. Davis (1904), 162 Ind. 558; American Rolling Mill Co. v. Hullinger (1904), 161 Ind. 673; Farris v. Hoberg (1892), 134 Ind. 269, 39 Am. St.
In Brown v. Mallett, supra, the declaration charged that “thereupon it became the duty of the defendant” to do certain, things. Of this Maulé, J., said: “But the allegation now in question is open to the further objection, that, however directly averred, it is an averment of matter of law only, and not of matter of fact. If the words had been, that the defendant became bound by law to do certain acts, it could not be questioned that that was an allegation of matter of law; and the words ‘it became the duty of the defendant,’ if they were to be understood as averring the existence of some duty different from that arising out of a legal obligation, certainly would not aid the declaration, inasmuch as the breach of such a duty does not give a cause of action. But, if they be understood, as we think they are, as averring the existence of a legal liability, it is well established that such an averment, .being an averment of matter of law, will not supply the Want of those allegations of matter of fact from which the court could infer the law to be as stated; so that such allegation is useless where the declaration is insufficient, and superfluous when sufficient without it.”
Seymour v. Maddox, supra, was a master and servant case, where there w'as an express allegation of duty. In
Eeturning to the paragraph of complaint under consideration, it is first to be observed, since the paragraph is drawn on the theory of a common law liability, that, for aught that is pleaded, the person who caused said car to be moved without having a brakeman or lookout' upon it was himself a fellow servant of appellee, for whose acts- or omissions appellant was not liable. Southern Ind. R. Co. v. Martin (1903), 160 Ind. 280. It devolved upon appellee t'o show, by proper allegations of fact, that it was a duty which belonged to the master that had been neglected. Southern Ind. R. Co. v. Harrell (1904), 161 Ind. 689, 63 L. R. A. 460. As was pointed out in the ease last cited, the duty of the master with'respect to providing a proper place to work does not require that the master should at all times keep the place safe as against transient perils occasioned by the negligence of other servants who are engaged in executing the details of the work. There is enough to sug
In indicating that the facts disclosed do not show the existence of a duty, we are not unmindful of what is alleged as to where it was the duty of appellee to be under his contract. There are instances where the word “duty” may be used in a pleading, although perhaps not with the utmost propriety, in characterizing the nature of the plaintiffs employment, as where the word is used as descriptive of an ultimate fact as to the character of the work which he was required to do, as that one of the duties which plaintiff was employed to perform Was to inspect his locomotive. In such an instance, the allegation is one of ultimate fact, and is partially descriptive of what his contract was. But here it is sought to be shown that appellee was properly in a particular place, and he charges that it was his duty to be there under his contract of employment, thus attempting to characterize the contract without showing what the contract was. If a rule of the company required him to be at that particular point, the existence of the rule should have been pleaded, ox*, if it was necessary for him to be there in order to execute one of the details of his work, that should be alleged, or, whatever the
In Jeffersonville, etc., R. Co. v. Dunlap (1868), 29 Ind. 426, this court, in speaking of some of the cases above cited, said: “The gravamen in each of those cases, was, that by virtue of a contract it became- the duty of the defendant' to do certain things which he neglected to do, whereby the plaintiff was damaged. It did not appear, from the facts stated, that the duty was imposed, and it was merely held that the averment that the duty existed was alleging a conclusion of law, and not of fact. This was in accordance with a rule of pleading long and well settled.”
Speaking generally of the first paragraph of the com
The objections pointed out to the first paragraph of complaint also condemn the third and fourth paragraphs.
The second paragraph of complaint is evidently founded upon the employers’ liability act (Acts 1893, p. 294, §7083 el seq. Burns 1901). Ordinances like those pleaded in said paragraph are ordained under the police power for the protection of the public. Pittsburgh, etc., R. Co. v. Moore (1899), 152 Ind. 345, 44 L. R. A. 638; Baltimore, etc., R. Co. v. Peterson (1901), 156 Ind. 364. Ordinances relative to the movement of locomotives and cars create duties, and their violation, in case of a person having a right, to complain thereof, following as a proximate result of such violation, is properly characterized as negligence per se. Pennsylvania Co. v. Horton (1892), 132 Ind. 189; Pennsylvania Co. v. Hensil (1880), 70 Ind. 569, 36 Am. Rep. 188; Pennsylvania Co. v. Stegemeier (1888), 118 Ind. 305, 10 Am. St. 136; Thompson, Negligence (2d ed.), §§10-12. See, also, Chicago, etc., R. Co. v. Boggs (1884), 101 Ind. 522, 51 Am. Rep. 761; Indiana, etc., R. Co. v. Barnhart (1888), 115 Ind. 399; Baltimore, etc., R. Co. v. Walborn (1890), 127 Ind. 142; Baltimore, etc., R. Co. v. Peterson, supra. “An ordinance of a municipal corporation is a local law, and binds persons within the jurisdiction of the corporation.” Pennsylvania Co. v. Stegemeier, supra; Baltimore, etc., R. Co. v. Peterson, supra. The violation of such an ordinance as either of these which is pleaded is a violation of law, and in such a case the law attaches its own consequences, and does not vest a dispensing power in the jury to set aside the law, as would be the case if the viola
As respects the charge in said paragraph that the engineer who was engaged in moving said mail-car violated a rule of the company, it will he observed that the sufficiency of said paragraph does not depend upon such allegation, as a violation of duty is otherwise shown. We may say, however, that the pleading of facts showing that a rule had been violated does not in and of itself constitute a sufficient showing of a duty neglected. The existence of a rule might be a factor in some cases in the making of such a showing, as in instances where the person who committed the alleged negligent act or omission had reason to apprehend that the person who was afterwards injured would be thrown off his guard by the assumption that the rule would be observed. We indulge in this observation that the case may not be presented to the jury on the second trial on the theory that evidence of the violátion of a rule necessarily shows a duty neglected.
It is next objected that said paragraph is insufficient because it fails to aver that appellee was “in the exercise of due care and diligence,” as required by §7083, supra. Appellee’s counsel seek to meet this objection by calling attention to the provisions of section one of the act of Eebruary 17, 1899 (Acts 1899, p. 58, §359a Burns 1901). Omitting the enacting clause, that section is as follows: “That hereafter in all actions for damages brought on account of the alleged negligence of any person, copartnership or corporation for causing personal injuries, or the death of any person, it shall not he necessary for the plaintiff in such action to allege or prove the want of contributory negligence on the part of the plaintiff, or on the part of the person for whose injury or death the action may be brought. Contributory negligence, on the part of the plaintiff, or such other person, shall be a matter of de
It does not admit of doubt that, if a cause of action is founded upon a statute, the plaintiff is not at liberty to subtract from the terms upon which the right has been accorded. American Rolling Mill Co. v. Hullinger, supra, and cases there cited; Indianapolis, etc., Transit Co. v. Foreman (1904), 162 Ind. 85. It is clear that prior to the enactment of the act of 1899 it was essential that a person bringing an action under the employers’ liability act should allege, either directly or in substance, that he was in the exercise of due care and diligence. Giving to the act of 1899 its broadest import, we must yet affirm that the statutory requirement of due care and diligence upon the part of the plaintiff is still an element in the cause of action under the act of 1893, but it is evident that we may accord to the last-mentioned act the full measure of its fundamental purpose, as an enactment increasing the responsibilities of the master, and yet hold that as a matter of pleading the plaintiff may have the benefit of the subsequent statute. The act of 1899, according to its title, purports to be “an act concerning the pleading and proof” in a certain class of cases, and if the grounds of action mentioned in the act of 1893 can be said to be a sub-class of the general class, with which the later enactment deals, then the relation of the two statutes is as hand in glove.
Does the statute of 1899 refer in part to the pleading and proof in actions given by the statute of 1893 for negligence causing injury to the person or death, or does such subsequent enactment refer only to a class of actions which might have been maintained prior to 1893 ? The condition of the employers’ liability act, that the plaintiff shall be in the exercise of due care and diligence, is tantamount to a requirement that he shall not be guilty of contributory negligence. Indianapolis Union R. Co. v. Houlihan (1901),
In considering whether the statute of Merton, in which the words omnes viduae were used, applied to each of the five kinds of dower, Lord Ooke observed: “Qui omne dicit, nihil excludit” — who says all does exclude nothing. Coke’s Inst, (second part), 81. We would not be understood, however, as asserting that the word, as used in legislation, is always t'o be understood as an all inclusive one. As so used, it is a general term, which is to be understood as comprehending whatever is within the outmost circle of the meaning of the word, unless, after subjecting the statute to interpretation and construction, there is sufficient reason for holding that the term was not used in so broad a sense. Harrington v. Smith (1871), 28 Wis. 43; Torrance v. McDougald (1853), 12 Ga. 526; Phillips v. State, ex rel. (1854), 15 Ga. 518; Kieffer v. Ehler (1852), 18 Pa. St. 388; Stone v. Elliott (1860), 11 Ohio St. 252; New Bedford R. Co. v. Old Colony R. Co. (1876), 120 Mass. 397. As indicated, there must be a reason which warrants the court in concluding that the word was not used according to its primary meaning to justify a holding that it was used in a more restricted way, for courts can not create exceptions in the operation of statutes, but at the most can only recognize such exceptions as the legislature has created. President, etc., v. Dalton (1850), 9 How. 522, 13 L. Ed. 242; Bradley v. Buffalo,
In Indianapolis St. R. Co. v. Robinson (1901), 157 Ind. 232, where it was claimed that the act of 1899 was unconstitutional, as containing too narrow a classification, this court said: “The act of February 17, 1899, includes within its scope all persons, natural and artificial, against whom actions for damages may be brought on account of alleged negligence causing personal injury or the death of any person. It applies to all actions of this kind, in all the courts of the State.”
It" is urged by appellant’s counsel that repeals by implication are not favored. They are not so far in disfavor, however, as to authorize us to hold that where the legislature has enacted a law which purports to apply to all cases of a certain character it did not mean what its words imply. The presumption against an intent to repeal by implication is very slight in a case where the subsequent act on its face purports to change some prior law, and if in the subsequent law it is declared that “in all actions” of a certain character a rule of pleading and of the development of the proof have been changed, we should require some more substantial reason than the one suggested for holding that such enactment did not apply to all actions falling within the class as described. It was declared by Lord Coke, that if cases “be in like reason, they are in the like law.” Coke, Lit., 191a. So, looking to the question as to what ought to he the rule of pleading and of the development of evidence in respect to contributory negligence in personal injury cases, we are led to inquire as to whether any reason can be assigned as having moved .the legislature to distinguish in respect to such matters between common law and statutory actions. We apprehend that a reason ¡can not he suggested. As to both classes of actions the
The above consideration as to the nature of the later enactment leads to the proposition that it is remedial in its character, and as such is entitled to a liberal construction. TJpon this point the case of Andrew v. Deshler (1881), 43 N. J. L. 16, is quite applicable. It appears that a statute had been enacted in Mew Jersey which permitted the plaintiff “in all actions of libel and slander” t'o aver that the words complained of were used in a defamatory sense, without resorting to innuendoes, etc.' The court in the above case held that the enactment applied not only to slander of person, but also to slander of title, as the latter species of action was “not only within the words of the act, but also within the mischief to be remedied.”
.In the application of the doctrine that remedial statutes are to be liberally construed,- there is ordinarily a reaching out upon the part of the court for a meaning that lies in some degree beyond the words, but in circumstances such as now' confront us, where the statute is not only remedial, but the case is wholly within the words of the enactment, and within its reason as well, we are at a loss to understand what sufficient ground can be assigned for refusing to accept the natural import of the legislative words as the efficient sign of its purpose.
Appellant’s counsel, while recognizing the power of the legislature to repeal a statute by implication, insists that if the act of 1899 is given the meaning that we have indicated should be attached to it, the act becomes amendatory, and that an act can not be made so to operate without complying with §21 of article 4 of the state Constitution. The section referred to has no application to an independent enactment. State. v. Gerhardt (1896), 145 Ind. 439, 33 L. R. A. 313.
Appellant’s counsel makes the further objection to said pleading that, as it appears therefrom that appellee had been continuously in the employ of appellant as a locomotive engineer for twenty-seven years, the employers’ liability act is unconstitutional as applied to such a case, as amounting to an attempt to impair the obligation of a contract. It is enough to dispose of this objection to state that it does not appear that at the time said act went into force there was any such definitive agreement between the parties for the future as would warrant the assertion that any contract right of appellant had been impaired. We hold that the second paragraph of complaint is sufficient. Appellant was not entitled to judgment in its favor on the ■jury’s answers to interrogatories.
IJn concluding ¡this opinion w© may properly observe ¡that-the instruqt.ion of the court .qn fihe. subject,of -the ,bur- . den. of proof, as ¡respect's..contributory negligence, was .caílcp,¡lated to mislead the jury. The,court instructed, upon :th^t ¡subject as follows:: “Gqntributary ¡negligence ¡is ¡a matter fpf defense, and such defense may (be proved ¡under ;the.gen,eral denial. This 'being the law of the State, it was not necessary for the plaintiff, George W. Lightheiser, to have offered any evidence -whsXctvQii: in chief bearing upon ,the
^Judgment reversed, with a direction to sustain appellant’s demurrers to the first, third, and fourth paragraphs of complaint..
Rehearing
A petition for a rehearing and a brief in support thereof have been filed by counsel for appellee. As the third and fourth paragraphs of the complaint were, without elaboration, held insufficient, on a ground which , was fully discussed by us in holding that the first paragraph of the complaint did not state a cause of action, it has resulted that it -is the portion of our opinion last mentioned to which counsel for appellee direct their argument, in so far as they discuss the question as to whether we erred in holding said paragraphs insufficient.
Reduced to its last analysis, the contention that the paragraphs mentioned stated a cause of action rests upon the claim that, if there is a general charge of negligence against a defendant, it is unnecessary to aver facts which disclose that a duty was owing by the defendant to exercise care for the safety of the person injured. While there are many cases in which assertions have been made that it is competent to characterize an act or omission as having been negligently done or omitted, yet we apprehend that no negligence case can be found in which it has been directly ruled that it is unnecessary to aver facts by which the legal duty to use care is made to appear. Sometimes this element appears as an incident of the pleading of other facts which it is necessary to allege in such a complaint, !but, in .oases like the one under consideration, where the ¡allegation ,of the immediate facts does not lead to the deduction that a duty upon ,the part .of the defendant to exercise care toward the plaintiff existed, the pleader must ¡allege further facts whereby the existence of the duty is manifested. .So fa¡r from .the authorities supporting counsel in the position stated, w'e think that, without exception, ,they will be found to accord with the position of the court. .See note to King v. Oregon, etc., R. Co. (1898), 6 Ida. 306, .as reported iu 59 L. R. A. 209, 214.
The pleader located appellee at a certain point between the tracks of appellant at the time he w'as struck by the mail-car. ETone of said paragraphs showed that at that time appellant owed him a duty, general or particular, to exercise care for his safety, and for this reason we continue of the opinion that said paragraphs of complaint did not state a cause of action.
The instruction given by the lower court as to the effect of the statute of 1899 upon the issue as to contributory negligence was clearly improper. That instruction was not only vague, but it was calculated to mislead the jury. In all ordinary circumstances, the giving of such an instruction is a reversible error. 11 Ency. Pl. and Pr., 140; Deilks v. State (1894), 141 Ind. 23. The point is made for the first time on the petition for a rehearing that if said instruction is considered in connection with instruction ETo. '20, given by the trial court, it will appear .that -the Jury eou'ld not have been misled. It is unnecessary, 'in view of the state of the pleadings, to determine whether the point mentioned has been waived by appellee, and, if not, whether his counsel are right in their contention. Sufficient has bean said as to the vague and misleading char-
The petition for a rehearing is overruled.