171 Ind. 71 | Ind. | 1908
Appellee sued the appellant for the loss of a leg, alleged to have 'been caused by the negligence of the appellant. The complaint is in two paragraphs. It is alleged in the first paragraph that appellant owns and operates a railroad running from Indianaolis through Richmond ; that on February 27, 1904, appellant operated between said points a passenger-train scheduled to leave Indianapolis at 6:50 o ’clock in the evening of each day, and held out to the tmblic that said train was a completely vestibuled train; that at the scheduled time'on said day the defendant started a train of cars from Indianapolis to Richmond, made up
The negligence charged is: “That said defendant care
The second paragraph of the complaint is not different from the first in any material respect.
A demurrer to each paragraph of the complaint was overruled. The defendant answered the general denial and one affirmative paragraph. Trial by jury, verdict and judgment for the plaintiff over a motion for a new trial.
We are -called upon to decide whether the facts stated in the complaint constitute a cause of action.
Negligence, however, is directly charged in respect to the making up of the train, by “carelessly, negligently and unlawfully” placing a baggage-car immediately in the rear of the passenger-car in which the plaintiff was riding, contrary to §5315 Burns 1908, §3927 R. S. 1881. This statute forbids, in the formation of a passenger-train, the placing of a baggage- freight- merchandise- or lumber-car in the rear of a passenger-ear. It was enacted in 1852, when it was generally the custom of railroad companies to operate mixed trains, composed of passenger- and traffic-cars, so ar
The judgment is reversed, with instructions to sustain the demurrer to each paragraph of the complaint.
Judgment reversed.