39 Ind. App. 472 | Ind. Ct. App. | 1906
Appellee’s complaint is in three paragraphs, to each of which a demurrer was overruled. Appellant answered in two paragraphs, to the second of which a demurrer was overruled. Trial by jury; verdict and judgment for appellee. Appellant’s motion for a new trial was overruled. All of the above rulings adverse to appellant are assigned as errors, and are discussed in the order named.
The second paragraph of the complaint is identical with the first, except that it contains these additional averments, to wit, that appellant “should aid and assist those in disembarking who, owing to the exigencies of age, infirmity, or other visible cause, were unable properly and safely to disembark from said car in the time and at the place required by the defendant, and that it should aid and assist those in disembarking who, because of the elevation of the steps of the car above the surface of the earth contiguous to the place of the exit, were unable, without such aid and assistance, properly and safely to disembark from said car at the place required therefor by the defendant; that the plaintiff was a woman fifty years old, of stature five feet in height, and of weight between one hundred eighty-five and two hundred pounds, and by reason of the premises it became and wás the duty of the defendant and its said servants to aid and assist her in disembarking from said car and to furnish and provide an additional step or steps upon which she could and might tread in disembarking from said car.”
In Faris v. Hoberg (1893), 134 Ind. 269, 39 Am. St. 261, it was said: “In every case involving actionable negligence there are necessarily three elements essential to its existence: (1) The existence of a duty on the part of the defendant to protect the plaintiff from the injury of which he complains; (2) a failure by the defendant to perform that duty; (3) an injury to the plaintiff from such failure of the defendant. When these elements are brought together, they unitedly constitute actionable negligence. The absence of any one of these elements renders a complaint bad or the evidence insufficient.” This court, in Thiele v. McManus (1891), 3 Ind. App. 132, said: “A complaint for personal injury through negligence must show a legal duty or obligation of the defendant toward the person injured, existing at the time and place of the injury, which
In the third paragraph an attempt is made to charge appellant with negligently constructing and maintaining its track at the place of the accident, so “that the top of said track was a long distance, to wit, one foot, higher than the surface of the street contiguous thereto,” and that said street at said point contained, and long - prior thereto had contained, an excavation and pitfall, as the defendant and its servants at the time knew, or by the exercise of ordinary diligence could or should have known.
The judgment is reversed, and the trial court is dirécted to sustain the demurrer to each paragraph of the complaint.