50 Ind. App. 283 | Ind. Ct. App. | 1912
— This was an action for damage to property caused by a collision between one of appellee’s locomotives and one of appellant’s interurban ears.
Appellee’s demurrer for want of facts to appellant’s amended second paragraph of complaint was sustained. The first paragraph was dismissed, and appellant refusing to plead further, the court rendered judgment in favor of appellee.
The sustaining of the demurrer is assigned as error.
The allegation as to time is less than five minutes. How much less does not appear, but it is, in effect, shown that the employes in charge of the car were not able to move it except by means of power obtained by replacing the trolley-wheel on the trolley-wire, which, as soon as the car stopped, they endeavored to do by the use of all means within their power. This court does not judicially know the length of time required to replace a trolley-wheel on an overhead trolley-wire under all conditions and circumstances. If the connection was to be made in the nighttime, as in this case, the length of time required might vary by persons equally skilled in the business, depending on their ability to see, on account of the light or darkness of the night, and other conditions necessary to be considered in determining the fact whether unnecessary time was consumed in the endeavor to move the ear before leaving it to signal the train to stop. The question thus presented, as well as the acts of appellant’s employes in signaling the train to stop, were all proper matters for consideration on a trial in determining the fact whether appellant was guilty of contributory negligence, but they are not sufficient as matters of law to override and control the direct allegation that the collision occurred “through no fault or negligence upon the part of said plaintiff or upon the part of said plaintiff’s said agents, employes or servants in charge of the running of said car.”
The paragraph stated a cause of action.
Judgment reversed, with instruction to overrule appellee’s demurrer, and to further proceed with the ease.
Note. — Reported in 98 N. E. 304. See, also, under (1) 31 Cyc. 73; (2) 29 Cyc. 572, 575; (3) 33 Cyc. 745; (4) 33 Cyc. 048; (5) 33 Oyc. 750. As to breach of statutory duty, in respect of speed of trains, as negligence, see 36 Am. St. 817. Upon the rate of speed preventing stoppage of trains within distance disclosed by headlight, see 39 L. R. A. (N. S.) 978.