48 Ind. App. 633 | Ind. Ct. App. | 1911
This was an action for damages on account of personal injuries received by appellee in a runaway, alleged to have been caused by the negligent operation of one of appellant’s interurban ears.
Appellee filed three paragraphs of complaint, but dismissed the first of these, and proceeded upon the other two, to each of which a demurrer was overruled and exception given to appellant. The case was put at issue by an answer in general denial, and upon a trial the jury returned a general verdict for plaintiff for $5,000, with its answers to interrogatories. Appellee remitted $1,000 from this verdict, and the court rendered judgment in his favor for $4,000. A motion for a new trial was overruled.
The errors assigned and relied on are the rulings of the court on the demurrers to the second and third paragraphs of complaint, and on the motion for new trial.
In answer to the first objection it is sufficient to say that the allegations of the complaint show that the operation of appellant’s car did in fact cause appellee’s horse to become frightened; that said horse, when it became so frightened, was being driven, hitched to a covered buggy with the top up, in which appellee and his daughter were being conveyed, along one of the much-used public streets in the city of Fort Wayne, running north and south through a populous part of said city; that appellant’s interurban tracks, which were double, occupied the center of said street, leaving a very narrow space on eael side thereof, between the outer rails and the sidewalk, ‘ ‘ affording barely sufficient room for an interurban car to pass a buggy;” that appellee’s horse, when it became frightened, was being driven in said narrow space on the west side of said street, in a southerly direction; that for a quarter of a mile or more said horse was in view of the operators of appellant’s said ear, which was approaching from the rear at “the excessive rate of speed of about thirty miles an hour,” which excessive speed created unusual anil unnecessary noises, causing said horse, which was “city broke and gentle, and had been driven around street-cars, interurban cars and railroad trains with perfect safety,” and was them being driven by appellee “in a prudent and careful manner,’’and was “under complete control,” to become frightened; that appellant’s servants operating said ear were so situated that they could and should have seen that said
We have indicated enough of the substance of this paragraph of the complaint to show that it is entirely sufficient under a very recent holding of the Supreme Court.
Appellant’s objections to this paragraph of complaint Avould indicate that it mistakes the theory upon which such paragraph proceeds. While this paragraph alleges that appellant, by the operation of its car in the manner charged, caused appellee’s horse to take fright, its theory is that appellant caused the horse to take fright at a time and place, and under such circumstances, as to put appellee in imminent peril from which he could not extricate himself, and that, seeing and knowing appellee’s perilous situation, appellant carelessly, negligently and unnecessarily so operated its
The case of Effinger v. Fort Wayne, etc., Traction Co., supra, is especially applicable to this case, and is decisive of the question of the sufficiency of the paragraph in question as against all the objections urged against it.
Appellee does not question appellant’s right to run its cars over the highway, or to make such noises as are necessary, usual and incidental thereto, but bases his complaint upon a negligent and wilful misuse of those rights at a time when appellee’s perilous situation must have been evident to the operator of the ear, and when such misuse might reasonably be expected to increase appellee’s danger.
In the case of Effinger v. Fort Wayne, etc., Traction Co., supra, the Supreme Court said: “It is not sought in this complaint to charge defendant with negligence in the first instance, by reason of either the speed of the ear or its appearance, but the theory of the pleading is that plaintiff was in a situation of imminent peril, and defendant, with full knowledge of the situation, increased that peril, and thereby caused the injury. It may be stated as a general rule, that when one sees another in imminent peril from which he cannot extricate himself, it is the duty of the former so to act as not to increase the peril, and if he does act in a manner to increase the danger after knowledge thereof, he is guilty of negligence. ’ ’
In the same ease the following is quoted with approval from Culp v. Atchison, etc., R. Co. (1887), 17 Kan. 475:
Appellant insists that the third paragraph of complaint is insufficient because the averment as to wilfulness is too narrow; that to make the complaint good it was necessary for appellee “to aver that the injurious acts alleged in the complaint were purposely or intentionally committed, with the intent wilfully and purposely to inflict the injuries of which appellee complained.
The eases of Gregory v. Cleveland, etc., R. Co. (1887), 112 Ind. 385, and Union Traction Co. v. Lowe (1903), 31 Ind. App. 336, are cited by appellant in support of its contention as to the insufficiency of this paragraph, but the requirements of said cases seem to be met by appellee’s allegation that appellant’s servants “maliciously and wilfully continued to pursue and chase plaintiff’s horse while it was so running away, thereby wilfully intending to frighten plaintiff’s said horse, and wilfully intending to cause plaintiff’s said horse to run away, well knowing that plaintiff was unable to control or manage said horse and avoid the injuries hereinafter alleged.”
There was proof tending to show that the manner of operating appellant’s car, and the noises made, were not necessary or usual at the particular time and under the circumstances.
Each witness testified that he saw the ear — Felts, as it passed him, and Greer, from a window in his residence.
“A nonexpert witness may give an opinion as to the speed at which the train was moving. Possibly the testimony of a
We have considered all the errors assigned and presented by appellant, and are of the opinion that each of the rulings called in question was correct, and that the judgment of the court below should be affirmed.
Judgment affirmed.