Pennsylvania R.R. Co. v. Hemmer, Admx.

186 N.E. 285, 206 Ind. 311, 1933 Ind. LEXIS 11

• Court: Indiana Supreme Court
• Decided: June 27, 1933
• Docket: No. 25,614.
• Status: Published

Opinions

Treanor, J.

This action was brought by the plaintiff as administratrix of the estate of Charles A. Hem mer, deceased, against the defendant, The Pennsylvania Railroad Company, to recover damages for the alleged wrongful death of Charles A. Hemmer.

The complaint alleged, in substance, that the defendant maintained and used a side track parallel with and a few feet east of the main line of defendant’s railroad which ran along Indianapolis Avenue and crossed Tipton Street in the City of Seymour; that by an ordinance of the City of Seymour it was made unlawful to operate any locomotive, car or cars within said city at a speed in excess of eight miles per hour; that on the day named plaintiff’s deceased was on “Tipton street east of defendant’s tracks, on foot and desiring to travel westward over said crossing, but the same was obstructed by a long freight train moving northward on the main track, and he walked to a point in said street near said moving train and about the middle of defendant’s side track and while waiting at said point for said freight train to pass and clear said crossing, defendant carelessly and negligently ran a locomotive northward upon and along said side track and against, upon and over said Charles A. Hemmer and thereby'so injured-him and that he then and there died of such injuries.” The defendant’s negligence was specifically alleged to consist of (a) running theTocomotive at a speed greater than 8 miles per hour, to wit: 12 miles per hour; (b) running the locomotive over the Tipton Street crossing without having sounded the whistle as it approached the crossing; (e) failure to ring the bell on the locomotive; (d) failure of the engineer on the locomotive to keep a look out for persons and vehicles using and intending to use the crossing and not seeing plaintiff’s decedent before striking him; and (e) running the locomotive along the side track • when it “could not be heard because of the noise from said freight train or so closely following said freight train as needlessly to endanger life and property on said crossing.”

The trial court overruled appellant’s motion to make the complaint more specific and appellant’s demurrer to the complaint, and issue was joined by appellant’s answer in general denial. Trial by jury resulted in a verdict for appellee. Appellant’s motion for new trial was overruled and judgment was rendered upon the verdict. Appellant assigns as error the overruling of its motion to make more specific, its demurrer, and its motion for a new trial.

We think the trial court committed no error in overruling appellant’s motion to make more specific. We agree with appellant’s proposition that “the defendant was entitled to have the complaint state the specific acts or omissions of the defendant which constitute the negligence relied upon,” but we think the complaint sufficiently alleged specific acts and omissions on the part of the defendant which constituted negligence.

“It .has often been held by this Court that a general charge of negligence is sufficient as against a demurrer, but if a defendant desires a more specific charge he. is entitled to it upon motion, if made in due season. But the rule has its limitations. A plaintiff is required to charge his cause of action in direct and certain terms yet he is not required to go into an elaboration of details beyond what is reasonably necessary fully and distinctly to inform the defendant of what he is called upon to meet.” Pittsburgh, etc., Ry. Co. v. Simons (1907), 168 Ind. 333, 79 N. E. 911.

“Appellant was entitled to have ‘a statement of the facts constituting the cause of action, in plain and concise language, without repetition, and in such manner as to enable a person of common understanding to know what is intended.’ §343 Burns 1914. . . . But this rule does not require more than is reasonably necessary to fully and distinctly inform the defendant of what he is called upon to meet.” Haskell and Barker Car Co. v. Trzop (1920), 190 Ind. 35, 128 N. E. 401.

In support of its contention that the trial court erred in overruling appellant’s demurrer to the complaint appellant says that “it affirmatively appears from the averments of the complaint that decedent was guilty of contributory negligence which was the proximate cause of his injury and death.” No such affirmative showing appears in the complaint. The complaint alleges that the decedent walked to a point in the street near said moving train and about the middle of defendant’s side track and that while waiting there for the freight train to pass and clear the crossing the defendant carelessly and negligently ran a locomotive on said track and against the decedent, and the facts are alleged concerning the operation of the locomotive which would constitute such carelessness and negligence. It can not be said, as a matter of law, that the act of decedent in waiting at the crossing, in the middle of defendant’s side track, for the freight train to pass, as alleged, considered in connection with the allegedly negligent operation of defendant’s locomotive upon the side track, constituted contributory negligence which was the proximate cause of the injury and death. Cleveland, etc., Ry. Co. v. Miles (1904), 162 Ind. 646, 651, 70 N. E. 985; Chicago, etc., R. Co. v. Boggs, (1885), 101 Ind. 522. No error was committed in overruling appellant’s demurrer.

Under its third assignment of error, the overruling of the motion for new trial, appellant presents in Points and Authorities the court’s action in giving instructions 1, 4, 5, 6, 8, and 10 at appellee’s request, the refusal to give instruction No. 20 tendered by appellant, the exclusion of appellant’s exhibit No. 1 from evidence, and that the verdict is not sustained by sufficient evidence and is contrary to law.

Appellee contends that no question as to instructions is presented on appeal because the trial court gave three instructions of its own motion which instructions were not signed by the judge; because the trial court did not “indicate before instructing the jury, by a memorandum in writing, at the close of the instructions” requested by appellee “the numbers of those (to be) given and of those (to be) refused,” as is provided in §586; Burns Ann. Ind. St. 1926 (Acts 1903, p. 338, §2-2010, Burns 1933, §343, Baldwin’s 1934) ; and further because the instructions are not in the record in that they “are not incorporated in or set out in the order purporting to make them a part of the record.”

An examination of the record shows a complete absence of a written memorandum at the close of appellee’s requested instructions indicating the numbers of the instructions to be given or to be refused. Nor is there a written memorandum, signed by the judge, on the margin or at the close of each of appellee’s instructions indicating whether the several instructions were refused or given. Further, the record does not show that the instructions given by the court on its own motion were signed. Also, as pointed out by appellee, “the instructions are not incorporated in- or set out in the order purporting to make them a part of the record,” which is the approved method of making the instructions a part of the record.' An appellant may bring up instructions by a special bill of exceptions or as a part of the record which “may be included in the transcript on appeal.” If he chooses to bring them up as a part of the record they must be made a part of the record; and this can be done only by substantial compliance with the provisions of the statute. In Morgan Construction Co. v. Dulin (1915), 184 Ind. 652, 109 N. E. 960, there was no written memorandum indorsed upon the instructions of appellee and this court held that the instructions were not in the record. The pertinent statements of the opinion in that case are as follows:

“It further appears, however, that certain other instructions were tendered by appellee with a request that each of them be given to the jury and with a further request that the court indicate by a memorandum in writing which of such instructions would be given and which would be refused. From the original record in this cause it does not appear that a memorandum of any kind was endorsed by the trial judge on the instructions so tendered by appellee and there is nothing in the record to suggest that he did in fact comply with the requirement of the statute in that regard. As we have already determined the presence in the record of a memorandum which is in other respects sufficient will give rise to the presumption that it was prepared at the proper time and such presumption will prevail unless affirmatively rebutted. It is equally true that from the absence of such a memorandum it must be assumed that none was prepared, and its absence cannot be supplied by record entry or other endorsement which does not meet the requirements of the statute. In the case at bar, however, appellant has sought to bring into the record by writ of certiorari a memorandum signed by the trial judge showing that each of the instructions tendered by appellee was given to the jury. But the return to the writ also shows affirmatively that such memorandum was in fact prepared and signed after the jury had been instructed. This is not a compliance with the provisions of the statute and precludes our consideration of the instructions. As the instructions tendered by appellee are not properly in the record no question is presented as to any of the instructions given or refused.” Morgan Constr. Co. v. Dulin, supra, p. 656.

In the transcript of the record of the instant case there is a record entry which recites that certain numbered instructions tendered by appellee were given or refused but under the holding of Morgan Constr. Co. v. Dulin, supra, that is not sufficient. On the authority, of that case we hold that appellee’s instructions are not in the record; and consequently we can not consider any questions based upon alleged errors in giving or refusing to give instructions.

Appellant insists that the trial court erred in excluding from evidence its Exhibit No. 1 which was an ordinance of the City of Seymour fixing the width of the street at and east of the defendant’s right of way where the accident occurred at fifty feet. It appears that the ordinance was passed by the Common Council of the City of Seymour in 1885. Appellee objected to the introduction of the exhibit on the grounds that a street can not be “laid out and established as to width, extended or narrowed by an ordinance” and an ordinance can not “contradict the dedication of a plat,” and when a street is laid out there must be a' plat and a record made' and kept in a book for that purpose.” Appellee cites §§3106, 3166, and 3192, R. S. 1881, as authority for the proposition that at the time the offered ordinance was enacted the common council of a city had no authority to establish by ordinance the width of any street; from which it would follow that the ordinance was invalid and its admission in evidence properly refused. By §3106, supra, (Acts 1873, p. 50, amending §53, ch. XV, Acts 1867) the powers of the common council of cities are set out, but the power to enact ordinances concerning the establishment, widening, or narrowing of streets is not included-therein. By chapter V, Acts 1875, p. 17 (§3166 et seq. R. S. 1881) provision was made for the appointment of city commissioners whose duty it was “to hear and determine all matters appertaining to the acquisition, opening, laying out, altering and straightening of streets, alleys and highways within said city.” It was there provided that said commissioners should file in the office of city clerk their report showing the character of any change or improvement, and if the city council should “by a vote of two-thirds of the members therof, determine to make the appropriation of the real estate for such improvement they shall enact a resolution accepting said report.” It was further made the duty of the city clerk to “copy the entire report into the records of the common council and to carefully file and preserve the original.” (§3175, R. S. 1881).

If, at the time of the enactment of the ordinance offered in evidence, proceedings to establish the street here involved required the appropriation of real estate it would have been necessary that the report of the commissioners be accepted by resolution of the common council, and in any event it was required that the entire report be copied into the records of the common council and that the original be filed and preserved. Section 27 of the 1875 act (§3192, R. S. 1881) provided that “whenever any street . . . shall have been opened ... a proper plat thereof shall be filed in the Recorder’s office of the county in which such city is situated,” such plat to be made by the City Engineer and filed by the City Clerk.

In its argument appellant contends that the ordinance was “some evidence of the width of the street as established by the authorities” and that “how effective it was for that purpose and what weight it might have as evidence was a question for the jury and the power and authority of the municipality of Seymour to establish and define a street in that way was a proper question for instructions by the court.” Assuming that the ordinance was admissible as evidence, appellant is correct in its contention that “what weight it might have as evidence was a question for the jury,” but the admissibility of the ordinance as evidence presented a question for the trial judge and it would have been improper to have left for the jury the question of the “power and authority of the municipality of Seymour to establish and define a street” by the ordinance offered by appellant.

“The admissibility of a given piece of evidence is for the judge to determine. This general principle is not disputed; its application to the various kinds of evidence—qualifications of witnesses, absence of a hearsay deponent, voluntariness of a confession, condition of a dying declarant, and so on— has already been considered under the various heads of evidence. It follows that, so far as the admissibility in law depends on some incidental question of fact—the absence of a deponent from the jurisdiction, the use of threats to obtain a confession, the sanity of a witness, and the like—this also is for the judge to determine, before he admits the evidence to the jury.

“This principle, one of the foundation stones of our law, has countless applications under the various rules of admissibility. In •more recent times, however, a heterodox practice has appeared, in places, of leaving some questions of admissibility to the jury. No doubt the judge, after admitting evidence, leaves to the jury to give it what weight they think fit, for they are the triers of the credibility and persuasive sufficiency of all evidence which is admitted for their consideration (post, §2551). But to hand the evidence to them, to be rejected or accepted according to some legal definition, and not according to its intrinsic value to their minds, is to commit a grave blunder. It is an error of policy (as well as a deviation from orthodox principle) for several reasons; in the first place, it is a needless abdication of the judicial function—of which humility we have already too much; furthermore, it adds another to the exceptions to the general rules; and finally, it cumbers the jury with legal definitions and offers an additional opportunity for quibbling over the tenor of the instructions.” Wigmore on Evidence, 2d Ed. Vol. V, §2550, p. 555, 556.

Since, at the time of the adoption of the ordinance offered by appellant as evidence, the common council possessed no authority to establish a street by ordinance, an ordinance purporting to so establish the street was invalid and therefore was properly excluded by the trial court.

Appellant also relies upon the insufficiency of the evidence to sustain the verdict. There was evidence from which the jury could have concluded that the engine was running at an unlawful speed, and also that no warning was given either by blowing the whistle or by ringing the bell. Appellant contends that by reason of a city ordinance its engineer was under no duty to blow a warning whistle for Tip-ton Street. The state law requires the whistle to be blown three times when a locomotive engine is not less than eighty nor more than one hundred rods from a public highway crossing over which such engine is about to pass and the bell to be rung continuously, from the sounding of such whistle until the engine has passed over the crossing. The statute contains the following proviso:

“That nothing herein shall be construed as to interfere with any ordinance that has been or may hereafter be passed by any city or incorporated town in this State regulating the management or running of such engines or railroads within the limits of such city or incorporated town.” §13038, Burns Ann. Ind. St. 1926, Acts 1881, p. 590.

The city ordinance in question is as follows:

“Sec. 3. It shall be unlawful for any person to sound any steam whistle on any locomotive engine, within the corporate limits of said city, except .in cases when required by the State law of Indiana, and in cases of extreme danger or for purposes of sounding the alarm of fire. Any person violating the provisions of this section shall on conviction be fined in any sum not less than one dollar and not more than twenty-five dollars.”

It is clear that the city of Seymour had the power to prohibit the blowing of engine whistles within the corporate limits of Seymour. But section 3, supra, expressly excepts from its general prohibition the provision of the State law which requires the locomotive engine whistle to be blown three times at a distance of not less than 80 nor more than 100 rods from a public crossing. In addition there is the express requirement that the whistle be blown in cases of extreme danger. The state law and city ordinance are not in conflict but harmonize and, when construed together, placed upon the appellant the duty of sounding the loco.motive whistle at a distance of not less than 80 rods before reaching Tipton Street and also the duty of sounding it immediately before entering upon the Tipton Street crossing if the circumstances attending the presence of the deceased upon appellant’s track presented a situation of extreme danger. We can not say that there was not sufficient evidence to justify the jury’s believing that appellant was negligent; neither can we say that appellee’s deceased was chargeable with contributory negligence as a matter of law. There were serious conflicts of evidence and it was a close question as to whether the deceased was exercising due care at the time of the accident. But the jury resolved these conflicts and questions of credibility of evidence against appellant’s contentions and the trial court confirmed the jury’s conclusion. We see no reason to disturb the result in the trial court.

Since we find no reversible error the judgment of the Jackson Circuit Court is affirmed.