42 Ind. App. 395 | Ind. Ct. App. | 1907
This was an action by the appellant against the appellee to recover damages for injuries alleged in his complaint, which was in two paragraphs. Demurrers were filed by defendant to each paragraph, overruled, cause put at issue by general denial, tried, and verdict returned by the jury in favor of plaintiff, assessing his damages at $5,318. With the general verdict the jury returned answers to nineteen interrogatories, and upon motion of defendant judgment was rendered in its favor upon such answers, notwithstanding the general verdict.
The errors assigned are eight in number, but are all embraced in two, which are as follows: (1) The court erred in sustaining the appellee’s motion for judgment on the answers to the interrogatories, notwithstanding the general verdict; (2) the court erred in not sustaining the motion for judgment on the verdict.
The appellee has assigned cross-errors herein as follows: (1) The court erred in overruling the motion to make tbe
The specific acts.of negligence charged against defendant in the first paragraph are: (1) That it ran said car after dark without any headlight or any artificial light whatever to give notice of the approaching car; (2) that no gong was sounded or bell rung by said defendant as said car approached said crossing and passed over the same where said plaintiff was traveling and was injured;- (3) that said defendant ran said car at a high and dangerous rate of speed while approaching and passing over said crossing where plaintiff was traveling and where he was struck by said car. There were other allegations relative to the violation of an ordinancé of said city, but they were not sufficiently averred to make out a valid charge of negligence against defendant, so. that we will not further consider this charge. The complaint further avers that the defendant negligently ran said car upon and against plaintiff, thereby injuring him.
The second paragraph of complaint contains substantially the same averments as the first, with the additional averment “that the defendant carelessly and negligently failed to have said car under control in approaching and passing along and over said crossing, so as to prevent the same from coming in contact with and striking plaintiff and injuring him as aforesaid, and by and through the carelessness and negligence of the motorman in charge of said car, in carelessly and negligently failing to stop said car before the same struck and came in contact with plaintiff, injuring him as aforesaid, ’ ’ etc.
We will first consider the demurrer to the complaint. The
If one or more acts of negligence are well pleaded, the same are sufficient to withstand a demurrer for want of facts. Diamond Block Coal Co. v. Edmonson (1896), 14 Ind. App. 594; Chicago, etc., R. Co. v. Barnes (1905), 164 Ind. 143; Southern Ind. R. Co. v. Hoggatt (1905), 35 Ind. App. 348; Standard Oil Co. v. Bowker (1895), 141 Ind. 12; Indianapolis St. R. Co. v. Marschke (1906), 166 Ind. 490. The trial court did not err in overruling demurrers to each paragraph of the complaint.
The jury returned with its general verdict answers to interrogatories as follows: “(3-) Did the Purdue car pass over said bridge coming east in advance of the Soldiers’ Home car? A. Yes.” “(6) What distance was there between said cars as the forward car passed over the bridge? A. In our opinion, fifty to one hundred feet.” “ (9) Were the electric lights on each of said cars lighted at and before said injury to plaintiff? A. Yes. (10) What was the rate of speed of said cars as they passed over and out of said bridge? A. In our opinion, running at the rate of eight miles an hour.” “ (12) Did the motorman of the car which struck the plaintiff see the plaintiff before the car struck him? A. Yes.” “(14) Could the plaintiff have seen the car which struck him before he stepped upon the track if he
Upon this question 2 Thompson, Negligence (2d ed.), §1477, with reference to street railways, says: “It is, then, a rule constantly applied by many courts in these cases that, although the traveler may have -been guilty of negligence in exposing himself to danger on the tracks of the street railway company, — yet if, after discovering him in his exposed position, or if, by the exercise of .ordinary diligence and at
In the case of the Indianapolis Traction, etc., Co. v. Kidd, supra, speaking of the doctrine of “last clear chance,” the court said: “This principle has been styled the doctrine of ‘last clear chance,’ and is regarded as an exception to the general rule forbidding recovery by a plaintiff guilty of contributory negligence. It is no departure from just principles, but a wholesome and humane doctrine, to hold, that if after the defendant knew, or in the exercise of ordinary' care ought to have known, of the plaintiff’s negligence, he could have avoided the accident, but failed to do so, the plaintiff can recover. - In eases of this class, the subsequent negligence of the defendant in failing to exercise ordinary care to avoid injuring the plaintiff becomes the immediate or proximate and efficient cause of the accident, which intervenes between the accident and the more remote negligence of the plaintiff.”
The appellant’s negligence, as thus presented by the pleadings and answers to interrogatories, being the remote and not the proximate cause of the injury, he is not precluded from a recovery. 7 Am. and Eng. Ency. Law (2d ed.), 375; Indianapolis St. R. Co. v. Bolin (1906), 39 Ind. App. 169; Indianapolis St. R. Co. v. Schmidt, supra; Southern Ind. R. Co. v. Fine (1904), 163 Ind. 617; Indianapolis Traction, etc., Co. v. Kidd, supra; Grand Trunk R. Co. v. Ives (1892), 144 U. S. 408, 429, 12 Sup. Ct. 679, 36 L. Ed. 485; Inland, etc., Coasting Co. v. Tolson, supra. We therefore hold that the trial court erred in sustaining appellee’s motion for judgment on the answers to the interrogatories notwithstanding the general verdict.
The cause is reversed, with instructions to the trial court to overrule the motion of appellee for judgment on the interrogatories, and to render judgment on the general verdict.