35 Ind. App. 676 | Ind. Ct. App. | 1905
The second paragraph of complaint on which the cause was, tided is substantially as follows (omitting formal parts) : That on September 1, 1902,
The language employed in the numerous decisions of aur courts in passing upon the sufficiency of complaints in negligence cases has been intended to apply to the particular averments under consideration^ Many of them are more useful for illustration than precedent. The expression of the Supreme Court in Evansville, etc., R. Co. v. Krapf (1896), 143 Ind. 647, has been followed and adopted in subsequent cases: “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 under such allegation any evidence tending to show that the act was negligently done
The overruling of the motion for a new trial is the only other error assigned. That the verdict is not sustained by sufficient evidence is one of the reasons set out in the motion for a new trial.
The evidence shows that the appellee was in the employ of the defendant, and was riding home from his work, at the close of the day, on a work-train drawn by a locomotive running backwards, at from eighteen to forty-five miles an hour (the engineer and conductor of the train fixed the rate at eighteen or twenty miles an hour), when the train ran off the track and appellee was injured.. There was no evidence tending to show that there was anything wrong with the track; that the engine was defective or out of repair; that it was run too fast for safety; or that there was anything unsafe, dangerous or negligent in running the train backwards, or at the rate of speed named by any witness. On the contrary, the evidence was that the engine was new, of an approved pattern, in perfect order, the track perfect, and the engine run as such engines of such trains .are run, and as they are made to run, at a speed safe for the engine and track. ETo explanation was offered as to the cause of the derailment. It occurred on a three-degree curve, which had a three-inch elevation. The train left the track about two rails, or, measured in feet, sixty feet, after it struck thé point of the curve. There was nothing unusual in the manner of running the rain. The usual way on appellant’s and other roads, in operating work-trains, was to run the engines backwards and forwards, and the evidence was that it was safe so to run the train.
Appellee cites Chicago, etc., R. Co. v. Grimm (1900), 25 Ind. App. 494, to sustain the complaint and the judgment. A reading of the case shows that it is distinguishable from the case at bar. In the former, as alleged in the comr plaint, the engine was attached to the rear of the train, so that the engineer was unable to see obstructions on said track in time to avoid collision therewith, and by reason of the fact that the cars were not preceded by an engine they were liable to be derailed upon coming in contact with any obstruction on said track, and that the same came in contact with a horse, by reason of which the car's were derailed. It was held that the complaint presented a question for the jury. At the trial there was evidence that it was dangerous to run the train in the manner charged; that derailment was more likely to' occur if the caboose rather than the engine came in contact with an obstruction; that the locomotive, by reason of its greater weight, would be more likely than the caboose to throw from the track or crush an obstruction.
In this case there was in the tender four or five tons of coal, and more than half a tank of water. Granting that whether the rate of speed or manner of operating a railroad train, when charged as negligence, presents, as a. general rule, a question for the jury, yet there remains the necessity of proving that the fact averred as constituting the negligence is negligence under the circumstances. In this case the manner of doing the particular acts is the gist of the charge. As to this there is a failure of proof.
The evidence .does not fairly tend to prove the essential facts in the case.
It is not necessary to pass upon the other reasons set out in the motion for a new trial.
Judgment is reversed, with instructions to sustain appellant’s motion for a new trial.