47 Ind. App. 530 | Ind. Ct. App. | 1911
— This was an action brought by appellee
The complaint is in one paragraph, to which a demurrer was filed and overruled. The cause was put at issue by general denial. There was a trial by jury, a verdict for appellee in the sum of $600, together with answers to interrogatories, motion for judgment on the answers to interrogatories overruled, motion for new trial overruled, and judgment rendered on the general verdict.
The errors relied upon and presented by appellant’s) brief call in question the sufficiency of the amended complaint, and the ruling of the court on the motion for a new trial.
That part of the complaint necessary to the presentation of the question raised by appellant’s counsel as to its sufficiency is as follows: “Plaintiff says that on May 26, 1905, he was riding on his dray * * * and driving a team of horses in a walk along the east side of Main street, going from north to south, between Tenth and Eleventh streets, which streets intersect Main street in the business portion of said city; * * * that he was exercising due care and caution to avoid danger; * * * that as he approached the intersection of Eleventh street and Main street defendant was driving his automobile along Main street, on the west side of the street, approaching Eleventh street from the south, running at a high, dangerous and unlawful rate of speed, to wit, twenty miles an hour; that on reaching a point in the street almost opposite plaintiff’s team, defendant, without notice to plaintiff and without giv
Appellant insists that the complaint is open to the objection that the only negligence charged is that the automobile was running at a high and unlawful rate of speed, and that this allegation, unaccompanied by any allegations as to appearance or noise made by the automobile, is not actionable negligence; and further, that the complaint fails to allege the existence of a duty on the part of appellant to protect appellee from the injury of which he complains.
As supporting the second ground of his objection, appellant cites and relies upon the eases of Evansville, etc., R. Co. v. Yeager (1908), 170 Ind. 139, and Faris v. Hoberg (1893), 134 Ind. 269, 39 Am. St. 261. These authorities furnish no ground for appellant’s contention here. These
Counsel insist that one operating an automobile has the same rights to the use of the streets as one operating any other kind of vehicle. So he has; and he is also charged with the same degree of care and caution, and the same regard for the rights of others in the use of the streets. We desire to make no distinction in favor of or against the operator of an automobile, but it is his duty, the same as the driver of any other vehicle, to use care proportionate to the dangers to which the vehicle in which he travels exposes other travelers of the highway.
Counsel for appellant next insist that appellant’s motion for judgment on the answers to interrogatories should have been sustained, but we have examined these answers, and
Judgment affirmed.