187 Ind. 405 | Ind. | 1918
— Action by appellee against appellant for personal injury. There was a trial by jury and verdict for the appellee in the sum of $2,000. Errors relied on by appellant for reversal are: First, the overruling of its demurrer to appellee’s amended complaint; secondly, the overruling of its motion for a new trial.
It is alleged in the complaint that appellant “agreed, received and undertook as a common carrier for hire to safely carry and transport from Indian Springs to the city of Linton, Indiana, a lot of household goods and furniture, five horses, two cows and appellee, in a certain car engaged for that purpose by appellee for the sum of $20 paid by appellee to appellant at that time.” The complaint then alleges that appellant attached this car to one of its freight trains and hauled it to the city of Linton, and then says: “That upon the arrival at said city of Linton of said train, and before said car had reached the regular point and place that horses and cows were unloaded from cars on said line of railroad in said city, and at a time that said car was still loaded, as aforesaid, and plaintiff was still therein, defendant by and through its agents and servants and employes who were then and there in charge of and had control of said car, locomotive and trains of cars * * * switched said car upon a switch or sidetrack * * * at a place where the same could not be unloaded * * *; that while the car was standing on said side
It is earnestly insisted by appellant that the court erred in overruling its demurrer to the amended complaint. The memorandum to the demurrer, which is relied upon by appellant, is to the effect that the complaint does not show that appellant owed appellee any duty at the time the injury occurred except not to wilfully injure him. Appellant says that it appears from the complaint that appellee was simply a passenger; that the car had arrived at Linton and it was therefore appellee’s duty to alight and leave appellant’s premises. If appellee was simply a passenger on this car to be transported from Indian Springs to Linton, this contention is correct. Appellee earnestly insists that the logical inference to be drawn from his pleading is that he was a passenger caretaker, and that as such his destination in the yards at Linton was at the cattle chute where cattle and horses could be unloaded and, the car not having been placed at that point, that he was rightfully on the car taking care of this stock.
It frequently happens that a pleading is such that a trial court should have sustained a demurrer to it, but if that court overrules the demurrer, the pleading may not be so defective as to make the court’s ruling a cause for reversal by this court. In this case it would have been better had the trial court sustained the demurrer to this pleading and compelled appellee to make his complaint clear as to his theory that appellee was at the time of the accident a passenger caretaker of stock, because this very looseness in the pleading led to an inaccuracy in instructions Nos. 1 and 2 given by the court in defining the issue. That appellant’s rights on this phase of the case were not prejudiced either by the overruling of the demurrer or the giving of the instructions Nos. 1 and 2, considering other instructions that were given, is quite clear.
Appellant next contends that the court erred in overruling its motion for a new trial and complains of instructions given and refused.
The court’s instruction No. 9% is as follows: “If you find, from a preponderance of the evidence in this case, that the plaintiff herein, either in person or by attorney or both, called upon the attorneys for the de
Appellant’s other points on instructions hark back to the complaint, i. e., whether appellee was simply a passenger or a passenger caretaker of stock. Appellant’s 'rights were not prejudiced by appellee’s theory under this pleading that he was a passenger caretaker. But, inasmuch as the judgment must be reversed on account of the instruction set out, it will clarify the issue to amend the complaint to state plainly appellee’s theory.
Reversed, with instructions to sustain motion for a • new trial and to sustain demurrer to amended complaint, with leave to amend.
Note. — Reported in 119 N. E. 714. Carriers: duty to caretakers accompanying shipments of stock, 81 L. R. A. (N. S.) 632, 22 L. R. A. 794. See under (1) 10 C. J. 630; (3, 4) 12 C. J. 319, 340.