125 Ind. 323 | Ind. | 1890
— Fields sued the city of Plymouth to recover damages, and charged in his complaint that the city had permitted a person engaged in moving buildings to obstruct one of the streets by planting a capstan in the street and leaving it over night without guards, lights, or other means to warn persons lawfully using the street of the obstruction.
It is averred that the plaintiff, while driving his team and omnibus along the street in the night, ran upon and against the capstan, thereby overturning and breaking his omnibus and harness, and bruising, wounding, and injuring one of his horses, besides sustaining severe injury to his person, without any fault on his part, to his damage in the sum of one thousand dollars.
There is no question made as to the sufficiency of the complaint. We do not decide anything on the question of the liability of the city under the circumstances disclosed in the complaint. Elliott Roads and Streets, 490.
The motion to require the plaintiff to make his complaint more specific, by filing a bill of particulars, was properly overruled. Possibly a bill of particulars might be required in a case involving injury to personal property alone, but in an action for injury to the person, or for a mere personal tort, such a thing as an itemized account, or bill of particulars, is impossible, as well as unknown in practice. Lemmon v. Moore, 94 Ind. 40 ; Kelley v. City of Madison, 43 Wis. 638. The motion was general, applicable to the personal injury as well as to the property alleged to have been damaged.
The second paragraph of answer was, in effect, a plea setting up facts which, if true, showed that the plaintiff was guilty of contributory negligence. This answer having followed a general denial, the court committed no error in sustaining the plaintiff’s motion to reject it. In actions like the present, the burden is upon the plaintiff to allege and prove that he was without fault which contributed to the injury. The plaintiff having averred that the injury occurred
The bill of exceptions, purporting to contain the evidence, is not properly in the record. The date of the presentation of the bill of exceptions, as stated in the body of the bill, indicates that it was not presented until after the time limited had expired. It is true, following the proper authentication and signature of the judge there is a personal statement, or memorandum, signed by the judge, showing that the bill had been presented within the proper time. A statement, or memorandum, on or anywhere about a bill of exceptions, which is not a part of the bill itself, can not control a statement made in the body of the bill. The statute is imperative, and this court has frequently decided that the date of the presentation shall be stated in the bill of exceptions. Orton v. Tilden, 110 Ind. 131; Rigler v. Rigler, 120 Ind. 431; Buchart v. Burger, 115 Ind. 123.
The bill of exceptions not having been properly authenticated by the judge, we can not consider questions arising upon the evidence.
The judgment is affirmed, with costs.