
    Higgins v. The Jeffersonville, Madison and Indianapolis Railroad Company.
    
      Pleading.—Negligence.—Injury to Person.—A complaint against a railroad ' company to recover damages for an injury to the person of the plaintiff, a child of the age of seven years, caused by the negligence of the defendant’s employes in the course of their employment, which failed to show, either by direct averment or by the allegation of facts, that there was no contributory negligence, was bad on demurrer.
    From the Marion Circuit Court.
    
      Perkins, Baker & Perkins, Denny & Denny and J. M. Ch’opsey, for appellant.
    
      Baker, I.Lord & Hendrieks, for appellee.
   Downey, J.

Suit by the appellant against the appellee. The complaint is as follows:

Thomas Higgins, Jr., by his next friend, Thomas Higgins, Sr., admitted by the court on his written consent herewith filed, complains of the Jeffersonville, Madison & Indianapolis Railroad Company and says that said company was, at the time, when,” etc., “ the owner of a certain railroad known as the Jeffersonville, Madison & Indianapolis Railroad, together with the tracks, cars, locomotives and other appurtenances and fixtures thereunto belonging; that on or about the 10th day of June, 1867, the plaintiff, said Thomas Higgins, Jr., of the age of seven years and no more, while returning from school, was upon and crossing the track of the aforesaid company, on which was standing a locomotive of said company, in the charge of the employes of said company, in the usual course of their employment; that said plaintiff then and there got upon said locomotive, and while he was so upon said locomotive engine, the said employes of said company in charge as aforesaid of said locomotive, knowing or having sufficient reason and grounds to know that said plaintiff, of the age aforesaid, was upon said locomotive, carelessly neglected to remove said plaintiff from said locomotive or to cause him to leave the same, and carelessly, while said plaintiff was so upon said locomotive, within the city of Indianapolis, Marion county, Indiana, started said locomotive and run the same along the track of said road, in the regular course of business and employment, at such speed as caused the plaintiff to become frightened, and while so frightened to leap from said locomotive, which said employes carelessly and wantonly permitted him to do, and carelessly and wantonly run said locomotive over him when he jumped from said locomotive, mangling and cutting off both his legs, whereby said plaintiff is made helpless and a cripple for life, to his damage of ten thousand dollars, for which he asks judgment.”

Opinion filed November term, 1874;

petition for a rehearing overruled November term, 1875.

The defendant demurred to the complaint for the reason that it does not state facts sufficient to constitute a cause of action. The court sustained the demurrer, and final judgment was rendered for the defendant. This ruling of the court is assigned as error.

The complaint fails to show, either by an averment or by the facts alleged, that there was no negligence contributing to. the injury of which the plaintiff complains. For this reason, the complaint is defective. The Pittsburgh, etc., R. R. Co. v. Vining’s Adm’r, 27 Ind. 513; The Lafayette, etc., R. R. Co. v. Huffman, 28 Ind. 287; The Jeffersonville, etc., R. R. Co. v. Bowen, 40 Ind. 545; and Hathaway v. The Toledo, etc., R. W. Co., 46 Ind. 25.

The judgment is affirmed, with costs.  