21 Ind. App. 397 | Ind. Ct. App. | 1899
Appellee sued appellant to recover damages for injuries received while traveling upon a street in appellant city, which injuries, it is averred, resulted from a defect in such street. It is charged in the complaint that in said city there are two streets, Second street, which runs north and south, and Jefferson street, which runs east and west, which said streets cross each other at right angles; that Second street is one of the principal thoroughfares in
It is argued by appellant that the complaint is defective, in that it does not show that appellee was free from contributory negligence. It is apparent from the complaint that appellee was not content to rest the question of his freedom from fault or negligence by the averment alone that the injury resulted without fault or negligence on his part, for he has pleaded specially the facts relied upon to show his freedom from negligence. The ordinary rule of pleading in this State, in actions to recover damages resulting from the negligence of the defendant, is to specifically plead the facts relied upon, and aver that the injury resulted without negligence on the part of
Another objection urged to the complaint is that it shows that appellee was negligent for leaving the side of the street which “the law of the road” granted him, and for driving over a ridge, etc. Second street in appellant city runs north and south. Appellee was driving on the west side of the ridge, which would take him along the west side of the street, and while so driving he met a team of horses coming towards him; and, desiring to cross to the east side of the street, he turned to the left, instead of keeping to the right, as appellant says was his duty, under the “law of the road.” The “law of the road,” as it is designated by the appellant, is found in section 5087, Horner’s R. S. 1897, wherein it is provided that “who shall, when driving any vehicle, fail to pass to the right when meeting another vehicle, so as to allow it to pass without injury, for every such offense such person shall forfeit the sum of five dollars,” etc. This statute relates to highways, and was passed to prevent their obstruction. It is evident from the language of the statute that it has no application to streets in an incorporated city; for the forfeit fixed by the statute is to be recovered by the supervisor of the road district, in the name of the township trustee, and the sum recovered shall be paid to the trustee of the township for the benefit of the highways of such district. A township trustee or a road supervisor has no control, management, or dominion over streets in an incorporated city. The statute we have cited is not a criminal statute, but one which provides a civil remedy for the recovery of a forfeit for the' benefit of the road fund of the proper district. Harvey v. State, 5 Ind. App. 422. See, also, Toledo, etc., R. Co. v. Stevenson, Tr., 131 Ind. 203. There is good rea
This leaves for discussion the second specification of the assignment of errors, which challenges the action of the court in overruling appellant’s motion for a
The determination of the third and fourth reasons for a new trial depends upon the evidence. Appellee insists that the evidence is not in the record, because it does not appear that the longhand manuscript of the evidence was filed in the clerk’s office before it' was incorporated in the bill of exceptions and signed by the judge. In this, however, appellee is in error; for the clerk certifies that the longhand manuscript of the evidence was filed in his office November 9, 1897, “and that afterward the said evidence was incorporated in said bill, etc., and signed by the judge.” But it may be suggested that this appeal is prósecuted under the act of March 8, 1897, and it is unnecessary in such case that the record show affirmatively that the longhand manuscript of the evidence was filed in the clerk’s office before it was incorporated in a bill of exceptions. It is sufficient if the record show that it contains the original bill of exceptions, embracing the evidence, and that such bill was presented to and signed by the judge, and filed either in open court or in the clerk’s office. Koontz v. Hammond, ante, 76, and cases there cited. All the requisites of the statute cited have been complied with to bring the evidence in the record, and it is properly before us.
It is strongly argued by appellant that the evidence
In answer to interrogatory five, the jury found as a fact that the holes in the street at and near the place of the accident had not been filled, and in answer to interrogatory six it was found that, the holes were there. It was also found as a fact that the hole into which appellee drove could not have been seen by a person driving along the street from the direction in which appellee was driving. Our conclusion is that the general verdict and the answers to the interrogatories are supported by the evidence^ In any event, there is evidence in the record from which the jury might have found every material fact essential to appellee’s recovery, and which tends to support all the answers to the interrogatories; and hence, under the rule that this court will not weigh the evidence, the verdict must stand, unless there is some other reversible error in the record.'
Eight of the reasons assigned by appellant for a new trial were based on the giving and refusing to
This leaves but one other question for decision, viz: Is the judgment excessive? We have examined therecJ ord with very great care, and, from the facts established by the evidence, we cannot say that the amount of the recovery is excessive. As was said in Courtney v. Clinton, 18 Ind. App. 620: “The rule prevails in this State, that the appellate tribunal will not interfere with the verdict of a jury unless the amount of recovery is so clearly excessive as to indicate that the jury acted from prejudice, partiality, or corruption, or were misled as to the measure of the damages.” See, also, Wolf v. Trinkle, 103 Ind. 355; Lake Erie, etc., R. Co. v. Acres, 108 Ind. 548; Louisville, etc., R. Co. v. Pedigo, 108 Ind. 481. In the case before us, appellee was a minister of the gospel. He was severely injured. He was kept from engaging in his profession for some considerable length of time. It appears from the evidence that his injury is permanent; that one of the bones of the left arm was dislocated, and another broken; that the arm would always be shorter than the other; that it was crooked, and would remain so; and that it never would be a perfect arm. Appellee also received other injuries. Under these facts, we cannot say that the jury, in assessing the damages, acted with prejudice, partiality, or corruption, and hence we cannot disturb the verdict as- being excessive. We find no error in the record. The judgment is affirmed.