No. 4,872 | Ind. Ct. App. | Oct 7, 1904
This action was begun in Hancock county. A trial resulted in a disagreement of the jury. The venue was then changed to Rush county, and a second trial resulted in a second disagreement. In the third trial a verdict for $999' in favor of the plaintiff was returned, and this appeal is taken, from a judgment rendered thereon. The complaint is in one paragraph. Its sufficiency Was not questioned prior to this appeal.
The first assignment of error is that the complaint does not state facts sufficient to constitute a cause of action.
During the second trial the amount for which judgment was prayed in the complaint was increased by appellee, upon leave of court, from $1,000 to $2,500. The complaint was not refiled. Appellant offered to file a demurrer, but was not permitted to do so, and tendered a new answer, which was refused. Appellee makes the point that the assignment is directed toward a pleading which has been amended out of the record. Tague v. Owens, 11 Ind. App. 200. No amended complaint is in the record. The original complaint, set out in the transcript, contains a demand for judgment in the sum of $2,500. The interlineation made did not amount to an amendment of the complaint within the meaning of the authority cited.
The averments of the complaint were, in substance, that the defendant was a corporation on and prior to May 1, 1901, owning and operating an electric street car line extending from the city of Greenfield to the city of Indianapolis ; that it so conducted its business as to require those using its cars to get off and on the same at the crossing of streets intersecting Main street in said city of Greenfield; that on said day plaintiff was a passenger upon one of said cars going east through Greenfield, and desired to alight
The point made against this complaint is that the appellant is not charged with negligence; it not being alleged
The second assignment of error is that the court erred in overruling the appellant’s motion for a new" trial. The grounds for a new trial, as stated in the motion, are that the verdict is contrary to law, and.not sustained by sufficient evidence, and that the court erred in giving and refusing instructions, and in overruling-objections to parts of the evidence. Appellee contends that none of these points can be considered, for the reason that the clerk’s certificate does not state that the transcript embraces the original longhand manuscript of the evidence, which is
The issue tendered by the complaint, and formed by the answer in general denial, was whether the car in which appellee was riding was slowed up for the purpose of allowing him to alight, and the speed thereof negligently increased with a violent and quick jerk while he was doing so. There was no contention that the ear stopped.
The twentieth instniction given was, in terms, as follows: “The employes of a street car company, in charge of cars carrying passengers, are required to give more care and attention to aged or infirm persons in boarding cars, riding thereon, or alighting therefrom, than would be required of them in relation to persons of mature years, in good health, and possessed of- full vigor of body and mind; and in determining the care and caution of the employes of the defendant, and the negligence or absence of negligence of the Employes in charge of the car on which plaintiff was a passenger, you may consider the age of the plaintiff, his infirmities incident to old age, if any, at the time of the accident, and the knowledge of such employes thereof, and their means of knowing such facts.” Appellee was at the time of the accident seventy-four years old. Appellant owed its passengers the duty, irrespective of their age, of stopping its car at proper places, upon timely notice, to permit them safely to alight therefrom. It owed them the further duty, irrespective of age, not to jerk the car violently while they were so alighting upon its invitation. The particular act of negligence upon which liability is sought to be established in the case at bar is that the car was negligently jerked and started forward. Mo averment is made that any particular duty to assist appellee in alighting existed or was violated. Mo duty to' watch over, restrain, or protect him was owing, other than to passen
Appellant contended upon trial that appellee voluntarily walked off of a car, the speed of which had not been slackened at his request or otherwise. The instruction set out might well have been understood by the jury as authorizing it to find appellant guilty of negligence in failing to restrain him from so doing. It was therefore outside the issues and erroneous. Indiana R. Co. v. Maurer, 160 Ind. 25" court="Ind." date_filed="1903-02-03" href="https://app.midpage.ai/document/indiana-railway-co-v-maurer-7054504?utm_source=webapp" opinion_id="7054504">160 Ind. 25.
It need only be said of the evidence that it is not so clear and convincing as to show that a correct result was reached.
The judgment is therefore reversed, and cause remanded, with instruction to sustain appellant’s motion for a new trial, and for further proceedings not inconsistent herewith.