being thrown upon her, and by being thrown upon and against said cornice and braces aforesaid; and by all of which her right arm was strained and injured, her hips and spine injured, whereby she was partially paralyzed, and her body otherwise cut, bruised, and wounded,-from all of which she has ever since suffered, and does still suffer, great bodily pain and mental anguish, and that she is, in consequence of said injuries so received, permanently disabled, and rendered unable to attend to her household duties, and rendered unfit for any kind of business pursuit, or the comfortable enjoyment of life or limb; that, in addition to her great suffering and disabilities, she has been put to great expense for surgical and medical attendance, nursing, and medicine, in and about the attempted healing of said injuries, and become liable for the necessary fees therefor. And the plaintiff says that, in consequence of said careless and negligent acts of the said defendant, its agents and employes, and without any fault or negligence on her part, she has been permanently injured in body and mind, her constitution weakened, her eyesight impaired, her health impaired, and her happiness destroyed, wherefore she demands judgment for ten thousand ($10,000) dollars."

Appellant's demurrer to the complaint was overruled. That ruling is one of the alleged errors upon which its counsel rely for a reversal of the judgment against it in favor of appellee.

The main and general objections urged to the complaint by appellant's counsel are that there is no averment that appellant, or its servants, were guilty of any careless act or omission in the actual running of the train; that there is no averment that the train left the track because of the curve, the insufficiency and imperfection of the locomotive, the rails, ties, or track, nor that such insufficiency caused the injury, or contributed thereto. In our own judgment, those objections, and others urged by counsel, have not such a basis upon which to rest as requires a holding that the demurrer to the complaint should have been sustained. The statute provides that the facts constituting the cause of action shall be stated in the complaint in such a manner as to enable a person of common understanding to know what is intended, (Rev. St. 1881, § 338;) and that in the construction of a pleading, for the purpose of determining its effect, its allegations shall be liberally construed, with a view to substantial justice between the parties, (Rev. St. 1881, § 376.) Dickensheets v. Kaufman, 28 Ind. 251. It is well settled, too, that à pleading must be taken as a whole, and construed according to its general scope and tenor. Fleetwood v. Dorsey Machine Co., 95 Ind. 491, 493, and cases there cited; Starret v. Burkhalter, 86 Ind. 439, 444.

Taking the complaint as a whole, the charges of negligence therein may be summarized as follows: Appellant, by its agents and servants, carelessly and negligently used a defective locomotive, not suitable nor sufficient to draw a passenger train at a high rate of speed; and, using that locomotive, it carelessly and negligently ran the train at the dangerous rate of 50 miles per hour; and was guilty of carelessness and negligence in running the train at that rate, with the defective locomotive, upon a down grade, without applying brakes, and around a curve not properly elevated, and over defective and insufficient rails not properly spiked to the cross-ties, over decayed, rotten, and defective cross-ties, and over a defective and insufficient road-bed,by reason of all of which acts of carelessness and negligence on the part of said defendant, so done and committed, and without any fault * * * on the part of plaintiff, the train was thrown from the track, and she was injured. The complaint closed with the averments that, in consequence of said careless and negligent acts of appellant, its agents and employes, the plaintiff, without her fault, was injured, etc.

The complaint is not as specific and methodical as it ought to be, but we think it sufficient to withstand the demurrer directed against it; especially when we apply to it the rules of construction prescribed by the statute and

established by our decisions. It is alleged specifically that the train was run over decayed and rotten ties; but the specific facts showing the insufficiency of the locomotive, in what regard the curve was not properly elevated, in what respect the rails were defective, and not properly spiked to the ties, and in what respect the road-bed was otherwise out of repair, are not stated. The general allegations as to these matters might have been reached by a motion to have the complaint made more specific, but the complaint is not necessarily bad, as against a demurrer, because the allegations are thus general. Cincinnati, H. & D. R. Co. v. Chester, 57 Ind. 297; Jones v. White, 90 Ind. 255; Cleveland, C., C. & I. Ry. Co. v. Wynant, 100 Ind. 160; Louisville, N. A. & C. Ry. Co. v. Krinning, 87 Ind. 351, 352; Boyce v. Fitzpatrick, 80 Ind. 526.

Whatever might be said of it, as an original proposition, under our later statutes it is settled, as a rule of pleading and practice in this state, in cases such as this, that it is sufficient, to withstand a demurrer for want of facts, to characterize an act as having been negligently or carelessly done, and that, under such an allegation, the facts constituting the negligence may be given in evidence. Cleveland, C., C. & I. Ry. Co. v. Wynant, supra; Jones v. White, supra; Louisville, N. A. & C. Ry. Co. v. Krinning, supra; Boyce v. Fitzpatrick, supra; Cincinnati, I., St. L. & C. Ry. Co. v. Gaines, 104 Ind. 526; S. C. 4 N. E. Rep. 34, and 5 N. E. Rep. 746; Wabash, St. L. & P. Ry. Co. v. Johnson, 96 Ind. 46.

As we have said, the complaint is not as specific and methodical as the rules of good pleading require; but looking to all the averments therein, and giving to them a fair construction, it may reasonably be said that negligence is charged with respect to the running of the train, the condition of the curve, ties, rails, etc. To sustain the charge of negligence made in the complaint, it was competent for appellant to prove, if she could, that the curve was not properly constructed, that the rails were defective, and not properly spiked to the cross-ties, and that the cross-ties were defective and rotten. The condition of the cross-ties, etc., as well as the speed of the train, are important elements in the negligence charged. Pittsburgh, C. & St. L. R. Co. v. Jones, 86 Ind. 496; Brinkman v. Bender, 92 Ind. 234; Pittsburgh, C. & St. L. Ry. Co. v. Adams, 105 Ind. 151, 155; S. C. 5 N. E. Rep. 187; Louisville, N. A. & C. Ry. Co. v. Hanmann, 87 Ind. 422.

When appellant admits, by its demurrer, all that is charged in the complaint, it admits too much to be heard to say that it is not charged with actionable negligence. The demurrer to the complaint was properly overruled. It is contended by counsel for appellant that the evidence does not show negligence on the part of appellant, and that hence the judgment should be reversed. As the train upon which appellee was a passenger was passing around a curve, upon a down grade, the spikes which held the outside rail to the ties gave way, the rail turned over, and the train left the track, and went down an embankment, and appellee was injured. She was without any fault that contributed to the injury which she received by the derailment of the train. These are facts which are established, and about which there is no conflict in the evidence.

Upon the authority of the case of Cleveland, C., C. & I. R. Co. v. Newell, 104 Ind. 264, S. C. 3 N. E. Rep. 836, and the numerous cases there cited, it may be said here, as was in substance said there, that when the plaintiff made it to appear that she was a passenger upon appellant's train, and, while being carried as such, the car in which she was seated left the track, and she suffered injuries thereby, she had shown a state of things upon which a presumption of negligence arose against the railroad company, which stood with the force and efficiency of actual proof of the fact, and was available for her benefit until negatived and overthrown; and that such presumption can only be overthrown by proof that the casualty "resulted from inevitable or una

voidable accident, against which no human skill, prudence, or foresight, as usually and practically applied to careful railroad management, could provide." In addition to the large number of cases there cited, we cite the following, decided by this court: Jeffersonville R. Co. v. Hendricks, 26 Ind. 228; Sherlock v. Alling, 44 Ind. 184; Yerkes v. Sabin, 97 Ind. 141, 145.

Upon the evidence before us, we cannot say that appellant met and overthrew the presumption which thus arose against it. Indeed, upon the record before us, this court cannot say that the jury were not justified in regarding the other evidence as sustaining the presumption of negligence which arose upon the undisputed facts, rather than as meeting and overthrowing that presumption. It is admitted by counsel for appellant that the evidence, as a whole, shows that the train was running around the curve at the rate of between 40 and 45 miles per hour. Some of the witnesses testified that it was running at the rate of 50 miles per hour. As to the condition of the ties, rails, curve, and road, there is a conflict in the evidence. There is evidence that some of the ties, at the point where the wreck occurred, and under the displaced rail, were decayed and unsound; that the rails were old and somewhat worn; that the road-bed was not in a good condition; and that the outside rail, around the curve, was not sufficiently elevated to withstand the momentum of a rapidly moving train. It was for the jury to determine as to what witnesses they would give the greater credence, and to settle the conflict in the testimony. What they have done in that regard, as settled by a long line of decisions, this court cannot undo. The verdict of the jury implies a finding that the rails were old and worn; that some of the ties were decayed and unsound; that the curve did not have a proper elevation, and that the train was running at the rate of 55 miles per hour; and that to run the train at the speed it was run around the curve, and over the road in its then condition, was negligence. Upon the record before us this court cannot disturb that determination.

The judgment in appellee's favor is $4,000. If her present condition is attributable to the injuries received in the wreck of the train, the damages, clearly, are not excessive. Appellant's counsel contend, however, that, under the evidence, the damages are excessive; and base that contention upon the further contention that appellee's disabled and diseased condition is not the result of, and was not solely and proximately caused by, appellant's negligence. In other words, they contend that at the time of and before the injuries received by the derailment of the train appellee was and had been suffering from ovarian troubles, and that to that cause, and not to the injuries received through appellant's negligence, her present condition is attributable. The testimony of the physician who had been her physician for some years before the casualty, and who attended her for some time thereafter, and that of other physicians who had made an examination of her person with a view of testifying upon the trial, go very far towards sustaining the contention of appellant's counsel. But upon this question, again, there is a conflict in the evidence. There is evidence tending to show that although, since the accident, she has been, in a measure, a physical wreck, prior thereto she was a healthy and vigorous woman, and that her present condition is attributable alone to the injuries received through, and by the wreck of appellant's train upon which she was a passenger.

In all cases where injuries have resulted to one from the wrongful or neg ligent acts of another, the courts should see to it that the party thus in fault shall respond in such an amount as will, as far as possible, compensate the injured party for all such injuries as may be properly attributed to such wrongful or negligent acts. And, as clearly, courts and jurors should see to it that parties accused of and guilty of negligence shall not be compelled to respond in damages for injuries which are not properly attributable to such negligence. Doubtless, cases occur where parties are not awarded such dam

ages as they ought to have for the injuries received; and doubtless, too, there are cases where the damages awarded are largely excessive, and are awarded for sufferings and broken health which are the result of other causes, and not at all, in any proper and legal sense, the result of the negligence of the party against whom they are awarded. As corporations often attempt to avoid liability, when in good conscience they ought to respond promptly, so there are often dishonest and unconscionable claimants who, having received some injury upon a wrecked train, or otherwise, feign injuries which they have not received, and seek a recovery against the corporation for these, and for broken health, which they know is the result of their own indiscretions, or other antecedent causes, and in no way attributable to the fault of the corporation. And as there may be a refusal of compensation because of an honest belief on the part of the managers of the corporation that there has been no fault for which it should respond in damages, so there may be, and doubtless are, many cases where persons having received some injury, and being fearful of consequences to follow, note with alarm the slightest symptoms, forget their real condition prior to the injury, and ignorantly and honestly attribute to that injury the recurring pains and failing health which are the results wholly of antecedent causes, and in no way connected with the injury complained of, or chargeable to the negligence of the corporation.

These considerations require that juries shall exercise the greatest vigilance, and the broadest judgment, and move upon the elevated plain of justice; leaving at their feet, and out of sight, considerations for wealthy and strong, on the one hand, and sympathy and prejudice, on the other. They require the same on the part of the trial judge, and that, with his superior learning in the law, he shall have the courage to correct any errors into which the jury may fall, by setting aside the verdict, if necessary. As has often been declared by this court, the jury and trial judge have the witnesses before them, and thus have a means of arriving at the truth which an appellate court cannot have. Until the contrary is affirmatively shown by the record, the appellate court must assume that the jury and court below exercised the utmost good faith, and brought to bear upon the issues involved their unbiased and best judgment.

Because of the conflict in the evidence as to the cause of appellee's present condition, this court cannot reverse the judgment upon the weight of the evidence, upon that question.

The next point discussed by appellant's counsel is the alleged improper admission of certain testimony by the witness Palmer, as to statements made to him by the road-master, Rogers. Their argument is met by counsel for appellee with the contention that no grounds of objection to the testimony were stated to the court below, and that hence no question as to its admissibility is before the court for decision. That contention cannot be avoided. The objection to the testimony, and the exception to the action of the court in admitting it, as stated in the record, were as follows: "Objected to by the defendant. Objection overruled, and exceptions taken at the time of objection." The objection thus made, as many times decided by this court, was too general to present any question. City of Delphi v. Lowery, 74 Ind. 522; Lake Erie & W. Ry. Co. v. Parker, 94 Ind. 91; Grubbs v. Morris, 103 Ind. 166; S. C. 2 N. E. Rep. 579; Shafer v. Ferguson, 103 Ind. 90; S. C. 2 N. E. Rep. 302; Indiana, B. & W. Ry. Co. v. Cook, 102 Ind. 133; McClellan v. Bond, 92 Ind. 424; Byard v. Harkrider, ante, 294, (present term;) Louisville, N. A. & C. Ry. Co. v. Falvey, 104 Ind. 409; S. C. 3 N. E. Rep. 389, and 4 N. E. Rep. 908.

Upon the trial below, after the witness Shanks had stated that he knew, and had a conversation at Mitchell, with John Carmony, the engineer in charge of the engine of the train upon which appellee was a passenger, and which was derailed near White river bridge on the same day, about seven v.9N.E.no.6—31

miles from Mitchell, he was asked to "state what Carmony said in that conversation." The objection made to this question was as follows: "To which question the defendant, by counsel, objected, for the reason that such conversation was irrelevant and immaterial; was in no way connected with anything that occurred at the accident where plaintiff is alleged to have been afterwards injured, near White river bridge." Over this objection, and appellant's exception, the witness answered as follows: "John Carmony told me that he would make the time if the wheels remained under him, or run her in the ditch." Here, again, appellee's contention cannot be disregarded that there is no available objection to the question, unless it be that the conversation was in no way connected with anything that occurred at the accident. In our judgment, no available question was saved by the objection made in the manner and at the time it was made. At the time the question was asked it was not known to the court what the conversation between the witness and the engineer was, or what it was about. Until in some way enlightened, the court had no way of determining whether the "conversation was in no way connected with anything that occurred at the accident." Appellant's counsel so stated in their objection to the question, but that statement was simply their conclusion put forward in the way of an objection to the question, and was not a statement of what the conversation was, or what it was about. The court was thus, in advance, asked to rule out, as incompetent, testimony which as yet it did not know to be incompetent. And this court is now asked to overthrow a judgment, and hold that the court below committed an error in overruling the objection to the question, made at a time when it did not know to what subject the statements of the engineer might relate. Whether the answer by the witness is competent is one thing; whether the question, as propounded, was competent, and whether or not the court shall be held to have erred in overruling the objection to the question at the time it did, and without knowledge of the subject to which the conversation related, are very different things. For aught that the court knew, the answer by the witness to the question might have been that the engineer had stated that his engine and the cars were all new and of a superior quality, and that his train was on time. An incompetent answer does not relate back, and render a question incompetent which is otherwise competent. The question, it will be observed, is a general one, asking for what the engineer said in a conversation, and does not ask for what he said upon or in relation to any particular subject.

If, then, in that conversation, it was possible for the engineer to have said anything that would be competent and relevant to the question at issue in this case, and that would have bound the company which he represented, it cannot be said that the question was incompetent, and that the court erred in overruling the objection thereto. We think that it was possible for the engineer to have said something at Mitchell, although seven miles distant from the scene of the disaster, that would have bound the railroad company, and that would have been competent and relevant in this case. It is charged in the complaint, as we have seen, that the railroad company was guilty of negligence in using a defective and insufficient locomotive, and that, using that locomotive, the train was negligently run at the dangerous rate of 50 miles an hour, upon a down grade, and around a curve. Suppose the engineer had said to the witness that his engine was old, defective, and insufficient; that the flanges on the wheels were too small in the beginning, and had become smaller by wear and breakage; and that, by reason of such defects, the engine had, prior thereto, left the track,-can it be doubted that such declarations would have been competent evidence in this case? Knowledge of such facts by the engineer in charge of the engine would clearly have been knowledge to the railroad company whose servant and agent he was, and evidence of such knowledge would have been the most potent evidence in support of