154 Ind. 430 | Ind. | 1900
In Indianapolis appellant maintains a line of railroad in Georgia street. Helen street runs north and south and crosses Georgia street at' right angles. On June 22, 1894, at this crossing, appellee, a boy nine years of age at the time of the injury, was struck by appellant’s switch-engine. This action was begun on Deeemer 11, 1895, in the Marion Superior Court, and the venue was changed to the Hancock Circuit Court. The complaint is in six paragraphs, the last charging a wilful injury and the others counting on negligence. Appellant’s demurrer to each of the first five paragraphs for want of sufficient facts was overruled. Answer of general denial. General verdict for appellee for $5,000. Appellant’s motion for a new trial was overruled. The errors assigned are the rulings on the demurrer and the motion for a new trial.
The sufficiency of the second paragraph is challenged on the ground that it does not state that plaintiff was injured
The third paragraph is said to be insufficient because it counts on the violation of an ordinance as the actionable negligence of appellant and then fails to show that such violation was the proximate cause of plaintiff’s injury. The violation of the ordinance was merely one of several elements in the appellant’s negligence as charged in this paragraph. As was said in Cleveland, etc., R. Co. v. Gray, 148 Ind. 266, 271: “Because the particular act of negligence prohibited by the statute is included in the sum total of negligent acts charged against appellant, it does not follow that the theory of the complaint is.thereby confined and limited to the statutory offense charged.”
The fourth paragraph charges: “That on or about the 22nd day of June, 1894, this plaintiff, a child of nine years of age, was on’ said crossing of Georgia and Helen streets, and upon said track of said defendant in said Georgia street without fault or negligence on his part, and while in said position and place, and while in plain view of defendant’s servant in control of and managing said locomotive and while seen and distinguished by said defendant’s said servant in time to have stopped said locomotive by the exercise of due care, and avoided injury to this plaintiff, the said defendant, through and by its said employes and servants, negligently approached said plaintiff with said locomotive belonging to this defendant, and negligently ran its locomotive against and onto this plaintiff, and negligently dragged this plaintiff a long distance, to wit, 200 feet; and negligently ran onto the right leg of this plaintiff, and negligently injured and crushed the said right leg of this plaintiff then and there,— all without fault or negligence on the part of this plaintiff.” This paragraph charges that appellant’s servants saw plaintiff on the track in time to have stopped the engine before reach
It is alleged in the fifth paragraph: “That on or about the 22nd day of June, 1894, this plaintiff, a child nine years of age, was on the said crossing of Georgia and Helen streets and upon said track of said defendant in said Georgia street; and while in said position and place, the defendant through and by its said employes and servants, ran said locomotive against this plaintiff and negligently dragged this plaintiff without fault or negligence on his part, a long distance, to wit, 200 feet; that the defendant knew that it had run its locomotive against this plaintiff at said crossing; and knew that it had knocked this plaintiff down in front of its said locomotive upon its said track; and knew that this plaintiff was dragging in front of said locomotive on said track; but that this defendant negligently failed to stop
The questions arising on the motion for a new trial relate to instructions. In the main they are accurate and clear; but in one respect, at least, there seems to be an irreconcilable antagonism. At one point the court charged the jury: “The persons in charge of the’ engine, even if they saw the said Erank Klee on the track, had a right to presume that he would leave the track in time to avoid injury, and they cannot be regarded as negligent if they acted upon that presumption, unless it appeared to them that he was in a helpless condition or was of such tender years as not to have sufficient intelligence to understand the danger and step from the track”. At another place: “If you find from the evidence that plaintiff Erank Klee was standing upon the defendant’s track at the place of the- happening of the accident, if any, and that his attention was diverted from the
Judgment reversed, with directions to sustain the demurrer to the fourth paragraph of the complaint, and to proceed further not inconsistently with this decision.