177 Ind. 599 | Ind. | 1912
Appellee recovered a judgment against appellant for damages for personal injuries alleged to have been received by him in a collision between a horse-drawn vehicle which he was driving and one of the passenger-cars of appellant on a street crossing in the city of Kokomo. The complaint was in three paragraphs to the first of which a demurrer was sustained. Appellant unsuccessfully demurred to the second and third paragraphs of the complaint, and issues were joined thereon by answer of general denial. With a general verdict for appellee, the jury returned answers to special interrogatories.
As the first cause for reversal, it is contended that neither paragraph of the complaint states a cause of action, and that, therefore, the trial court committed error in overruling its demurrer to each paragraph upon which the case was tried.
The second paragraph reads as follows: “And for a second and further paragraph of plaintiff’s complaint, Omer Downey, plaintiff, says that the defendant is a corporation duly organized and doing business under the laws of the State of Indiana, and owned and operated a street and interurban railway along and upon Union Street and the Southern extremity of said street North to a point where Taylor Street crosses Union Street in the City of Kokomo, County of Howard, State of Indiana, on the 13th day of April, 1906, and for a long time prior thereto. That from a point where Sycamore Street crosses Union Street, in said city, North past defendant’s station where the defendant company’s cars stop for the purpose of letting passengers on and off and for loading and unloading of freight, and on North past Walnut Street to a point where Taylor Street crosses Union Street
These allegations are followed by allegations of special damages and prayer for judgment.
The third paragraph is materially different from the second only in allegations concerning the position of the car
As an abstract proposition this instruction is doubtless a correct statement of the law. But it was not applicable to any issue presented by the pleadings and evidence in the case, and no attempt was made to connect it with any particular obstruction or diversion of the street. There was no explanation or qualification accompanying it which would have prevented the jury from applying it to the tracks and cars of appellant in the street, which would, of course, have been both erroneous and harmful to appellant.
By instruction nineteen, given at the request of appellee, the court undertook to instruct the jury on the doctrine of last clear chance. The complaint did not present any such issue, nor was the instruction applicable to any evidence given in the cause, and the giving of this instruction was, for that reason, error.
The result reached in the trial court is not so clearly right on the evidence that we can say that appellant was not harmed by tbe errors indicated, and they require the reversal of the case. Other questions are raised which are not likely to arise on another trial, and it is not necessary, therefore, to give them consideration.
Judgment reversed, with instructions to grant appellant a new trial.
Norn—Reported in 98 N. E. 634. See, also, under (1) 36 Cye. 1571; (2) 36 Cye. 1505; 20 Ann. Oas. 152; (3) 36 Cyc. 1571; (4) 36 Cyc. 1590; (5) 38 Cye. 1612; (6) 38 Cye. 1604. As to negligence as imputed to one failing to perform a duty imposed by statute, see 90 Am. Dec. 54. As to tlie right of a railroad company unnecessarily to obstruct a street with standing cars, see 1 Am. St. 843. As to the purposes for which a highway may not be used, see 131 Am. St. 532.