176 Ind. 263 | Ind. | 1911
Appellee sued appellant for personal injuries alleged to have been received by reason of appellant’s negligence in running one of its cars against the wagon appellee was driving across appellant’s tracks at a street crossing in the city of Marion, Indiana. The complaint was in two paragraphs, and demurrers were overruled to each of them.
From a judgment on a verdict for appellee this appeal is prosecuted by appellant.
The specific and only objection to the sufficiency of this paragraph of the complaint is that it contains no allegation that appellee was free from contributory negligence. It is urged that as it contains a statement that appellee’s wagon was damaged in a sum stated, it is a complaint for injuries to property, and that as the act of 1899 (Acts 1899 p. 58, §362 Burns 1908), placing the burden of proving contributory negligence on a defendant, does not change the rule of pleading in negligence eases when the injury is to property, this paragraph is bad without such allegation of appellee’s freedom from contributory negligence.
It is clearly apparent that this paragraph of complaint seeks to recover for injuries to the person of appellee alone, and not for injuries to his wagon. It nowhere alleges, by any direct allegation, that the wagon was injured by the acts of negligence averred, but only the disconnected statement is made, “that his wagon was damaged in the sum of $20.” No damages are asked for this loss, but, on the contrary, it is alleged that appellee sustained injuries in the sum of $5,000, and for that sum judgment is asked. The statement quoted from the complaint, of damages to the wagon, is mere surplusage. Moreover the record shows that the appellee was not seeking a recovery for damages done to his wagon, and that the trial proceeded on the theory that a recovery was sought for personal injuries alone. The court’s instruction, defining the measure of damages, included only injuries to appellee’s person. The court did not err in overruling the demurrer to this first paragraph of complaint. Oölitic Stone Co. v. Ridge (1908), 169 Ind. 639.
The trial court gave to the jury eight instructions requested by appellee, and gave all the instructions — eleven
Appellee’s complaint charged negligence on the part of appellant in running the car that caused the injury at a high and dangerous rate of speed along a street in the city of Marion, in running it in violation of a city ordinance lim
The judgment is reversed, with instructions to the trial court to grant a new trial.