Atchison, Topeka & Santa Fé Railroad v. O'Neill

Opinion by Strang, C.: Action for damages. During the night of August 14, 1888, a stock train on the plaintiff’s road separated as it was pulling out of the yards of the city of Emporia. When- the fact was discovered that a portion of the cars in the train had broken loose, the switch engine ran in behind the rear section and the two sections of the train were switched off the main track, the front section by the engine hauling the train, and the rear section by the switch engine, and run in on the south track, for the purpose of having them fastened together. In the meantime, the conductor of the train had notified Joe Wooten and the defendant, car repairers of the plaintiff at the Emporia yards, of the condition of the train, and they, with one James Dillon, a helper, secured a ohain and went over to the train to tie the sections together. It was found that the draw-bar had pulled out of the front end of the head car of the rear section. Wooten fastened one end of the chain to the draw-bar of the rear end of the last ear in the front section of the train, and passed the other end over the truck frame of the head end of the front car of the rear section to O’Neill, who was under the front end of said car, on the brake beam, to receive the chain from Wooten, put it around the center pin, and pass the end back to Wooten, that he might hook it between the cars, and thus tie them together. After Wooten passed the chain over to O’Neill, and while the latter was -about to put' it about the center pin, the train suddenly pulled ahead, catching O’Neill’s left leg in the slack of the chain, and crushing it to such an extent that amputation below the knee became necessary. The petition was filed March 16, 1889, claiming damages in the sum of $25,000. The company moved the court to require the plaintiff to piake his petition more definite and certain. This motion was overruled. A demurrer was then filed [385] and overruled. On the trial, a general verdict was rendered for the plaintiff in the sum of $13,000. Special findings were made, in one of which the jury gave the plaintiff below the sum of $5,000 for pain and suffering; in another $7,230 for loss of limb, and $770 for loss of time. There being no evidence upon the subject of loss of time, the plaintiff below remitted the $770, and moved for a judgment for the balance. The defendant below moved for judgment on the special findings. The latter motion was overruled, and judgment was entered on the verdict for $12,230. Motion for new trial was overruled. One of the alleged errors complained of by the plaintiff in error is the action of the court in refusing to require the plaintiff below to make his petition more definite and certain. The petition alleges that the plaintiff below was a car repairer, and that while under the car in the line of his duty, engaged in fastening two cars together, the locomotive engine attached to said cars violently and suddenly started forward, without notice or warning to him and against his orders, whereby his leg was caught in a chain with which he was trying to couple the cars together, and crushed so that amputation became necessary. The petition also alleged negligence, as follows: “And this plaintiff avers that said injury occurred wholly without fault or negligence on his part, and wholly because of the gross carelessness and negligence of said defendant, its agents, and servants, and in violation of all proper rules and regulations for the management and handling of cars under such circumstances.” The following is the motion, omitting the caption, to make the petition more definite and certain: “First. By setting forth and stating the facts fully as to whether the engine, which in plaintiff’s petition is alleged to have violently and suddenly started forward, was so violently and suddenly started forward through the acts of any of defendant’s employés, and by stating the facts as to whether or not said engine was by the effort or conduct of any of defendant’s employés negligently started forward. “Second. By setting forth every fact on which is based the [386] statement that the injury occurred because of the gross carelessness and negligence on the part of the defendant itself; by setting forth and stating the facts which constitute any gross carelessness or negligence on the part of the agents or servants, and by stating what agents or servants were guilty of gross carelessness and negligence, either by giving their names, or stating the position which they held and occupied in defendant’s employ at the time of the accident. “ Third. By stating and setting forth all facts which would show any violation of all proper rules and regulations for the management and handling of cars under such circumstances; by showing what rules and regulations were violated, setting the same out in substance or in full.” There is no direct allegation in the petition that the engine was started ahead, when the injury was done, by any of the agents or servants of the company, and no statement of facts showing by whom said engine was started ahead, nor by whose negligence, if by the negligence of any one, it was started. It is true that the portion of the petition quoted alleges that the injury occurred wholly by reason of the gross carelessness and negligence of said defendant, its agents or servants. In this case, if the company were guilty of any negligence, it was the negligence of its agents or servants, and it had a right to know, not only which of its agents was chargeable with negligence, but also what acts or omissions of such servant or servants constituted the negligence complained of, so that its defense could be intelligently prepared with respect thereto. It is difficult, if not impossible, to tell from the petition in this case to what servant or servants of the company negligence is imputed. It is also difficult to tell what act or omission of any of said servants constituted the negligence complained of. Did the pleader intend to impute negligence to the engineer or the brakeman, to the conductor or the yardmaster? We are unable to say, except that perhaps the petition exonerates the conductor, who, under the evidence, seems to have been guilty of greater negligence than any other servant of the company. It is alleged that the company was guilty of negligence in [387] violating all proper rules for the conduct of trains under the circumstances connected with the injury, but no rule is pointed out as having been violated, nor does the petition attempt -to state what the misconduct of the company in this regard was. We think the petition too general, indefinite and uncertain as which of the company’s agents or servants it imputes negligence to; as to what acts or omissions constitute the negligence complained of, as well as to what proper rules for the conduct of trains the company violated in connection with the injury. The petition was, therefore, subject to a motion to make it more definite and certain. The motion was made- at a proper time. It clearly pointed out the defects of the petition, and fully and definitely showed in what manner it should be corrected. We are of the opinion, therefore, that the refusal of the court to require the plaintiff below to correct his petition was prejudicial error. It is pretty clear that the plaintiff below had his limb-crushed through the carelessness of some one. It looks to us from the evidence that the conductor, who evidently faikd to do what he told O’Neill he would do, arrange with the engineer not to start the train except on a verbal order from him, was guilty of gross negligence. He not only promised O’Neill he would make such arrangement, but after going towards the-front of the train and returning told him it was all right and1 was safe. It was on the strength of this statement that' O’Neill went under the car. It is pretty clear, too, that the-conductor did not go to the engineer to have any talk with him on the subject, but simply went to the front and told the brakeman to watch carefully for signals. As the error of the-court in overruling the motion reverses the case, we will not consider the-other assignments of error. It is recommended that the judgment of the trial court be reversed. By the Court: It is so ordered. All the Justices concurring.