31 Ind. App. 556 | Ind. Ct. App. | 1903
Suit by appellees for damages for injury to a car load of horses. A demurrer to the complaint “for the reason that said complaint does not state a cause of action” was overruled. This ruling is the first error assigned.
It is suggested by counsel for appellees that the demurrer is not in form as the statute requires. But we think it sufficient to question the complaint under the fifth statutory cause for demurrer. The form used could not reasonably be said to come within any of the other statutory causes for a demurrer. Demurrers have been held sufficient in form where a demurrer to several paragraphs of answer was on the ground that neither paragraph “states facts sufficient” (Ross v. Menefee, 125 Ind. 432); and to a complaint that it “does not state facts sufficient” (Petty v. Board, etc., 70 Ind. 290) ; and that the complaint “does not state facts enough to entitle the plaintiff to relief” (Pace v. Oppenheim, 12 Ind. 533); and that the complaint “does, not contain and set forth sufficient facts to enable the plaintiffs to sustain said action” (Stanley v. Peeples, 13 Ind. 232). Demurrers on the ground that the com
The complaint avers that on July 24, 1901, appellees shipped thirty horses over appellant’s road, with directions to appellant to deliver to themselves at Russiaville, a town on appellant’s road; that the shipment was made in time so that the horses could be delivered at such station before the morning of July 25, 1901, at which date appellees had advertised a sale of the horses; that appellant accepted the horses, which were then in good condition — the freight charges having been paid in advance — and placed the car in one of its freight-trains which reached Russiaville about 11 o’clock of the night of July 24, 1901; that at that time appellees had at the place an experienced representative who understood the business of unloading horses from cars into stock-yards, at which place appellant had a stock-yard with a chute made for the purpose of receiving stock from the cars and transferring them to the stock-yards; that it was appellant’s duty to place the car at and in connection with the chute; that a representative of appellees at the arrival of the train requested appellant’s employes in charge of the train properly to set the ear at the chute so that the same might be unloaded; that this the employes
This is an action in tort. It is predicated upon appellant’s negligence. It is argued against the sufficiency of the complaint that it fails to charge negligence, and that if it does charge negligence it fails to connect such negligence with the injuries complained of. It is averred that it was appellant’s duty to place the ear at the chute at the stock
But the complaint fails to show this imputed negligence was the proximate cause of the injury. It is simply charged that during the time the car load of horses was in appellant’s charge, and while standing on the side-track, they became and were injured. Whether they were injured because of having been left on the side-track, or whether they were injured from some cause with which appellant had nothing to do, is left to conjecture. No facts are averred to show whether injury would necessarily and naturally result to horses left as these were, and that appellant knew such to be the fact. No facts are averred which to a certainty raise the presumption that the injury was the result of the negligence charged. It is not charged that the horses were injured by reason of having been left as they were. So far as informed by the complaint, the injury might have occurred just as it did occur had there been no omission of duty on appellant’s part. The pleading shows no connection between the negligence charged and the injury in the way of cause and effect. The injury is averred,but the complaint does not aver what caused it, nor does it aver facts from which it can be said that the injury complained of must necessarily have occurred from the negli
The averment at the close of the pleading that “the injury to plaintiffs’ horses was caused wholly on account of the negligence of the defendant, and without any fault or negligence on the part of the plaintiffs,” does not make the complaint sufficient, as no act or omission is mentioned, and no reference is made to any act or omission or negligence before mentioned. South Chicago City R. Co. v. Moltrum, supra; Ohio, etc., R. Co. v. Engrer, supra.
Judgment reversed, with instructions to sustain the demurrer to the complaint.