52 Ind. App. 322 | Ind. Ct. App. | 1913
This is a suit by appellee against appellants for damages alleged to have been sustained by reason of appellants’ negligence.
The facts not in dispute show that appellants are common carriers of passengers: that appellee was a passenger on one of their trains, and while riding as such passenger, the train was derailed and appellee was injured. The jury returned a general verdict in favor of appellee, and with it, answers to 67 interrogatories.
Appellants have assigned as error the overruling of the demurrer to the complaint, the overruling of the separate motions of each appellant for judgment on the answers of the jury to the interrogatories, notwithstanding the general verdict, and the overruling of the motion of each appellant for a new trial.
The complaint charges, in substance, that appellee was a passenger on one of appellants’ trains on January 28, 1909; that at that time appellants’ track was defective at a point about three miles west of the city of New Albany, in this, that the rails were insufficient, were not properly spiked to the cross-ties, and that the ties were decayed and rotten: that the locomotive and cars comprising the train on which appellee was a passenger were old and out of repair and the axles of the same were imperfect and weak; that while appellee was such passenger and riding from the town of Cory-don Junction to the city of New Albany, appellants ran said train carelessly and negligently at a high and unusual rate of speed to wit, 50 miles an hour; that said train was so carelessly, negligently and dangerously run over said defective and insufficient track, cross-ties and rails aforesaid.
It is asserted by appellants that the complaint does not charge either a negligent derailment or a negligent injury; that three interdependent causes of the derailment are alleged, viz.: defective track, defective axles and excessive speed, and that not one is shown to be the proximate cause of the injury; that under such a charge, though made in a passenger case, the rule of res ipsa loquitur has no application, and the complaint is bad because it fails to show a negligent derailment of the train, but does show that the derailment was the proximate cause of the injury; that the complaint is also insufficient to show a cause of action on any one of the alleged causes of the derailment, because it fails to show that any one of them was the proximate cause of the injury, but charges that all taken in combination, caused the derailment.
The complaint clearly shows that the relation of carrier and passenger existed between appellants and appellee, and where this is shown, and it also appears from the pleading that the .complaining passenger was injured by the derailment of the train, the rule of res ipsa, loquitur applies, notwithstanding several causes are alleged to have produced the derailment.
In the case of Terre Haute, etc., R. Co. v. Sheeks (1900), 155 Ind. 74, 56 N. E. 434, the court had under consideration a case of a passenger alleged to have been injured by the derailment of a train. The complaint charged several specific defects with reference to a switch as the cause of the derailment, and it was contended that without proof of all of the specific defects alleged there could be no recovery, and the court, in discussing the question, said on page 91: “It cannot be successfully asserted that because she by her complaint has been more particular and specific in describing the deficienees of the switch in controversy than was necessarily required therefore she cannot recover unless she proves all the particular defects as charged in the complaint. ’ ’ Also on page 93 it is said: “Upon no view of the case can it be said, we think, that appellee, in order to succeed, must prove all of the particular infirmities or deficienees alleged in regard to the switch. As heretofore stated, proof of the essence or gravamen of her cause of action would be sufficient. The facts alleged in the complaint, disclosing as they do the relation of passenger and carriel’, also the occurrence of the accident and the injuries sustained by appellee there
Appellants concede that the complaint shows that the derailment was the proximate cause of the alleged injury, and that it would be sufficient if it charged in general terms a negligent derailment or a negligent injury.
down an embankment, and by reason thereof appellee was injured without any fault or negligence on his part. These averments, when fairly construed, charge that the derailment was caused by the negligence of appellants, and show that such negligence was the proximate cause of appellee’s alleged injury. Domestic Block Coal Co. v. De Armey (1913), 179 Ind. -, 100 N. E. 675, 102 N. E. 99. The complaint states a cause of action, and the trial court did not err in overruling the demurrer thereto.
Most of the objections to the instructions given by the court are based on appellants’ construction of the complaint, and under our view are not tenable, for reasons apparent from our discussion of the complaint.
The jury was clearly instructed on the burden of proof, and the burden of maintaining the affirmative of the issue of negligence charged in the complaint was not shifted to appellants, as asserted by them. The jury was also told that if it found that the car in which appellee was riding was derailed by something not alleged in the complaint as causing its derailment, or by some unforeseen or unexplainable
We find no available error in the record, and the judgment is therefore affirmed.
Note. — Reported in 100 N. E. 773. See, also, under (1, 3) 6 Cyc. 626; (2, 4, 8) 6 Cyc. 628 — New Anno.; (5) 38 Cyc. 1508; (6) 3 Cyc. 386; (7) 6 Cyc. 628; (9) 38 Cyc. 1711; (10) 38 Cyc. 1782. As to derailed car or broken rail as res ipea loquitur, see 20 Am. St. 491. As to legal theory of causal connection in respect of proximate cause, see 36 Am. St. 807. As to counsel’s misconduct in course of argument as ground for reversal, see 9 Am. St. 564. On the question of pleading particular cause of injury as waiver of right to rely on res ipsa loquitur, see 24 L. R. A. (N. S.) 788. As to the relation of doctrine 'res ipsa loquitur to burden of proof, see 16