Chicago & Erie Railroad v. Lawrence

Hadley, J. In its yards at Hammond appellant has a track running north and south known as “72.” South of the middle there is a spur connected with “72” and running to the northwest. Appellee’s decedent, Lewis P. Lawrence, was a switchman in the employ of appellant, and a member of a switching crew engaged in the Hammond yard. On February 8, 1904, at about 8:30 o’clock p. m., Lawrence [323] and. the crew to which he belonged took a train of cars south on “72” beyond the spur intersection. The engine was backing, drawing the cars after it. The train having passed the spur, the direction was reversed, and going north a car of coal was “kicked” onto the spur. The train then proceeded north, the engine pushing the cars ahead of it, to a point one hundred yards or more north of the spur intersection. Here the train was stopped, and, to set an empty flat-ear, also on the spur, the engine returned south, drawing the flat-ear after it at the rate of about five miles an hour. Before the engine and flat-car were started, Lawrence and the other switchman got into the engine cab. The night was cloudy and very dark. The engine, which was backing, had a headlight in front looking north, but no light on the rear of the tender looking south, except a “bull’s eye” light, in size and brilliancy the same as a signal lantern. As the engine approached somewhere near the spur intersection, Lawrence, standing on the west side of the cab, with signal lantern in hand, in the proper discharge of his duty in switching the flat-car, seized the hand-iron of the cab, and let himself down to the step leading to the ground. The coal-car that had been previously “kicked” onto the spur, at the moment Lawrence was alighting from the cab, was standing on the spur a short distance north of the spur frog, and about six and one-half inches west of the line described by the passing engine cab, and, while so on the engine step, Lawrence was caught and rolled between the coal-ear and engine cab, and fatally injured. Appellee, as administratrix, brought this action to recover for the benefit of herself, as widow, and their minor children, on the ground that the death of her husband was caused by the negligence of the appellant. The complaint is in one paragraph, to which a demurrer for insufficiency of facts was overruled. On an answer of general denial the case was submitted to a jury, which returned a verdict for appellee, and answers to a large number <?f interrogatories, [324] Error is assigned on the overruling of the demurrer- to the complaint, the overruling of motions for judgment on the answers to interrogatories, and for a new trial. 1. 2. •3. The sufficiency of the complaint is questioned on the grounds of uncertainty, inconsistency and repugnancy. There is no ground for controversy with appellant that, if a pleading be so uncertain as not to state intelligibly a substantially good- cause of action or defense, it will be subject to demurrer for not stating a cause of action or defense, as ruled in Snowden v. Wilas (1862) 19 Ind. 10, and many other cases. This complaint, however, cannot be justly said to come within the rule. It does contain much unnecessary matter, and gives evidence that the pleader was not clear on what class of facts he should rest his case. The averments concerning the failure of the defendant to furnish the decedent’s crew with such a switch-engine as was in common use in switch yards, and the failure of the defendant to have and maintain clearance posts at the place of injury, and its failure to have and maintain lights at that place, and the failure of the engineer in charge of the locomotive to warn the decedent of the dangerous proximity of the coal-car on the spur, and the violation of the appellant’s rules in requiring the decedent to work overtime, are all matters that encumber and cloud the complaint, and the pleading would have been much strengthened as a model if they had been omitted. But if a good cause of action is in fact stated the complaint will not fall before a demurrer because of uncertainty, inconsistency, or repugnancy. Coddingion v. Canaday (1901), 157 Ind. 243; Tipton Light, etc., Co. v. Newcomer (1901), 156 Ind. 348; Sheeks v. State, ex rel. (1901), 156 Ind. 508; Frain v. Burgett (1898), 152 Ind. 55. Neither will a demurrer reach duplicity in a pleading. Rielay v. Whitcher (1862), 18 Ind. 458; Den-man v. McMahin (1871), 37 Ind. 241; Jones v. Hathaway (1881), 77 Ind. 14, 19. [325] 4'. The complaint is no worse than it was before answer, and if more than one cause of action is stated, or it is so inconsistent, uncertain, or repugnant as to mislead the defendant in the preparation of its defense, it should have made available its complete remedy by a motion to separate, or to make more certain and definite. 5. There is, however, running through the complaint, a chain of averments that indicate, with reasonable clearness, that the pleader chiefly counted upon the violation of an ordinance of the city of Hammond against running locomotives backward in the night-time without a brilliant and conspicuous light at the rear end thereof. A copy of the ordinance is set forth in the complaint, and the trend of the evidence indicates that this was the theory upon which the case was tried. Besides, this theory is made clear by the court in the charge to the jury. After calling attention to certain averments in the complaint relating to other alleged delinquencies of the defendant, the charge proceeds: “But the court instructs you, as a matter of law, that under the issues and evidence in this case, there can be no recovery on account of [the kind of engine used]. This will leave for your consideration the questions relating to the alleged violation of the alleged ordinance.” Where the predominating theory of a complaint is doubtful or uncertain, the theory adopted by the parties and the trial court will be adhered to on appeal. Reeves v. Grottendick (1892), 131 Ind. 107; Anderson, etc., Mach. Works v. Myers (1896), 15 Ind. App. 385. 6. The only specific objection to the complaint upon this theory is that there is no charge in the complaint that appellee’s decedent was ignorant of the location of the coal-car standing on the spur-track, and its dangerous proximity to the main track over which the engine was passing, at the time of the injury, and that we must presume that he did know of its position, and, having exposed himself as the engine passed, was guilty of con326 tributary negligence. With respect to this point the complaint is as follows: ‘ ‘ Said decedent did not know of, had no means of knowing, and could not see by reason of the darkness and the defendant’s failure to provide proper headlights and equipment of said engine, the near approach of said engine to said coal-car, and the danger to which he was thereby exposed.” Omitting the qualifying sentences, the averment is that the decedent did not know of the near approach of said engine to said coal-car. This is equivalent to alleging that he did not know where the coal-ear was, and is sufficient. 7. 8. A general objection is made to the refusal of the court to give certain instructions requested by appellant. Excepting the eleventh and twelfth, every point stated in the others was fully covered by those given by the court, and quite as favorable to the defendant as it had the right to ask. The eleventh and twelfth were refused, and rightly so, because they contained a misstatement of the law. Both requests were to the effect that if the decedent knew, or by the exercise of reasonable diligence might have known, at the time of his injury, that the locomotive being used was not equipped with a headlight on the rear end thereof, and had a high, square tank,. and the injury resulted from the absence of such light, and if it was found that the decedent continued in the employ of the defendant, and to work on and about such engine, after knowing of the dangers attendant upon the use of an engine so equipped as a switch engine, then, the jury was instructed, as a matter of law, that the decedent assumed the risk of all injuries that might reasonably be expected to flow from the use of such engine, in such business. It will be borne in mind that the negligence charged in the complaint, and relied on, is the violation of an ordinance of the city of Hammond, in these words; [327] “Section three. Every locomotive engine, railroad car, or train of cars, running in the night-time on any railroad track in said city, shall have and keep while so running a brilliant and conspicuous light on the forward end of such locomotive engine, or train of cars, and in case any such engine, car, or train shall be run backward at such time, such lights should be kept at the rear end thereof. ’ ’ This ordinance imposed on the defendant a fixed and positive duty to keep a brilliant and conspicuous light on the rear end of its locomotives when running backward in the night-time within the city. §3541 Burns 1901, cl. 42, Acts 1895, p. 180. 9. The doctrine of assumed risk rests in contract and does not apply to relieve a defendant from the consequence of a breach of a specific duty, prescribed by statute or municipal ordinance. Baltimore, etc., R. Co. v. Peterson (1901), 156 Ind. 364, 374; Davis Coal Co. v. Polland (1902), 158 Ind. 607, 92 Am. St. 319; Island Coal Co. v. Swaggerty (1903), 159 Ind. 664; American Car, etc., Co. v. Clark (1904), 32 Ind. App. 644. 10. Appellant earnestly insists that the answers to interrogatories, in effect, show that the decedent was guilty of negligence that contributed to his injury, and that its motion for judgment thereon ought to have been sustained. The answers disclose that Lawrence was of the age of thirty-four years, five feet, four inches tall, an experienced switchman, of ordinary intelligence, and possessed of all his faculties. He had been employed by appellant as a switchman in the Hammond yard for ten months before the injury, and had been working for three days with and about the particular engine from which he was alighting when hurt. He commenced working with said engine at 8 o’clock a. m. and continued until he was hurt, about 8:30 p. m. The engine had an ordinary headlight in front, lighted and in good repair. When injured the engine was running backward at the rate of five miles [328] an hour, drawing one flat-car after it. The spur-track was on a common level with “72.” The coal-car standing on the spur was nine feet, eight inches wide, painted a dark red, and was standing so close to “72,” that as the engine backed past on “72” there was a space of but six and one-half inches between the side of the car and the tender of the engine. As the engine approached the spur connection and was about to pass the coal-car standing on the spur, Lawrence, who was riding on the deck of the engine with a lighted lantern in his 'hand and with his back toward the coal-car, swung out of the cab to the step leading down to the ground, to be ready to couple the flat-car to the coal-car when the former came in on the spur, and his body came in contact with the car and was carried and rolled between the car and the cab of the engine. It was the duty of Lawrence, as a member of the switching crew, at the time the coal-car was thrown on the spur, to see that the car, when it was placed on the spur, was a sufficient distance from the frog and “72,” so that engines passing over “72” could pass and repass said car, with their switching crews riding or working about their engines, with safety to the crews. When the coal-car was thrown onto the spur, Lawrence, in answer to an inquiry by another member of the crew, said: “She will clear.” The coal-car was placed on the spur about five minutes before Lawrence’s death. There was no evidence that the coal-car was left by the switching crew on the spur, at the same place it was found standing at the time of the accident. There was room enough on the spur to enable the crew to set the coal-car far enough in to make it safe for crews engaged on, and with, passing engines. Others of the crew had the same opportunity to know that the coal-ear was standing too close to “72.” There was nothing to prevent Lawrence from seeing where the coal-car stood at the time it was left. If Lawrence had used the lantern he had in.his hand as [329] he attempted to alight from the engine, hacking to. the south, he could not have seen the coal-car. 11. Appellant calls attention to the findings that it was the duty of the deceased, as switchman, to see that the coal-car was located on the spur at a safe distance from “72;” that there was nothing to prevent him from seeing where it was placed; that he announced to a fellow workman that it was placed so that it “would clear,” and when in the act of alighting from the cab of the engine, while it was backing south past the coal-ear standing on the spur, he swung out of the cab down to the step, with his back to the coal-car, without using his lantern to ascertain the proximity of the coal-car. These facts are, however, but a part extracted from the body of facts proved in the trial, and upon which the jury determined the general verdict. We have no means of ascertaining what other facts may have been proved, to explain or modify the special findings and become controlling in reaching the verdict. Hence the general rule, that this court on considering answers to interrogatories will indulge all reasonable presumptions against the special findings, and in favor of the general verdict; and, if the general verdict thus aided is not wholly inconsistent with such answers upon any rational hypothesis, it must prevail. City of South Bend v. Turner (1901), 156 Ind. 418, 54 L. R. A. 396, 83 Am. St. 200; Wright v. Chicago, etc., R. Co. (1903), 160 Ind. 583; Baltimore, etc., R. Co. v. Rowan (1885), 104 Ind. 88, 96. 12. [330] 10. [329] Contributory negligence, was provable, like any other facts within the issues, by a preponderance of the evidence; and the burden was upon the defendant. There is evidence in the record that there was plenty of room on the spur for the coal-car to stand clear of “72,” and that when the coal-car was “kicked” onto the spur it ran in till it struck other cars standing thereon. There is an answer that there was no [330] evidence that the coal-car, when it caused the decedent’s injury, was standing where it was when the decedent said it would ‘ ‘ clear. ’ ’ There is also an answer that if the decedent had used his lantern when he went to leave the cab, he could not have seen the coal-car standing on the spur. If the car was moved from a place of safety to the place of danger, as we must here presume that it was, after Lawrence left it, and without his knowledge ; and if the night was so dark that he could not see the car as he left the cab, if he had used his lantern, as the jury found the fact to be, then the jury was justified in acquitting him of negligence in these respects. So under these facts, the evidence, and the rules of construction, we cannot sustain appellant in its contention that the general verdict, which, in effect, finds that the decedent was not guilty of contributory negligence, cannot be reconciled with the answers to the interrogatories. Therefore the motion for judgment on the answers to interrogatories was properly overruled. 13. In its motion for a new trial, also in the statement of errors relied on, appellant sets forth divers objections to the admission and exclusion of certain evidence. But the bill of. exceptions is voluminous, the testimony of the witness chiefly involved covering more than fifty printed pages, and appellant has wholly failed, in his brief, to give the page and the line of the record where the action of the court complained of may be found, as required by rule twenty-two. We have therefore omitted consideration of such objections. 14. It is also claimed that the evidence did not sustain the answers relating to the decendent’s contributory negligence. But there is some evidence in support of each one of them, and it was for the jury, not us, to say whether it amounted to satisfactory proof. We find no error in the record. Judgment affirmed. Grillett, J.; did not participate.