80 Ind. App. 260 | Ind. Ct. App. | 1921
This is an action by appellee against appellant for damages to its fire truck, and apparatus connected therewith, alleged to have been caused by reason of appellant operating one of its cars over a street crossing in a negligent manner, and in violation
Appellant’s contention that the court committed reversible error in overruling its motion to require appellee to make its complaint more specific is not well taken. It has been held that overruling such a motion is so largely a matter of- discretion with the trial court that, to render its action in that regard reversible error on appeal, it is necessary that. the mover show that he was in some way injured by the denial. Leimgruber v. Leimgruber (1908), 172 Ind. 370, 86 N. E. 73, 88 N. E. 593. Appellant has not suggested in what way it was misled, as to the nature of the demand in suit, or how it was prevented from making full preparation for its defense, or any other matter that worked to its disadvantage by reason of the court’s action in overruling said motion. In view of this fact, and the further fact that an examination of the record fails to disclose that any substantial rights of appellant were probably affected by such action of the court, we are led to conclude that no reversible error
There was no error in overruling appellant’s demurrer to the complaint. It shows that appellant was operating its car in violation of certain ordinances of appellee; that while so operating its car, and as a result thereof, it was struck by appellee’s fire truck, which was being driven on one of its streets in response to an emergency fire alarm; that by reason of such collision, which occurred without fault on the part of appellee, it sustained damages to its said fire truck in the sum of $4,000. It thus alleges a duty on the part of appellant, a violation thereof, and resulting damages to appellee. This is sufficient to state a cause of action. Public Utilities Co. v. Handorf (1916), 185 Ind. 254, 112 N. E. 775.
Appellant predicates error on the action of the court in sustaining appellee’s demurrer to its counterclaim. There was no error in this ruling. If appellant had a cause of action against appellee because of the facts alleged, it could not prosecute the same as a counterclaim in this action, as appears from the following decisions. Lake Shore, etc., R. Co. v. Van Auken (1891), 1 Ind. App. 492, 27 N. E. 119; Excelsior Clay Works v. DeCamp (1907), 40 Ind. App. 26, 80 N. E. 981; Hooven, Rec., v. Meyer (1920), 74 Ind. App. 9, 128 N. E. 614. However, it is clear that the facts stated by appellant in its alleged counterclaim did not constitute a cause of action in its favor. It is well settled that the maintenance and operation of a fire de
Appellant contends, that in order for appellee to recover in this action the evidence must show that the ordinances, alleged to have been violated, were passed before its franchise was granted, or that they were a part of the same, or, if passed subsequently, that it agreed to be bound thereby. Appellant evidently bases this contention on the theory, that to hold it liable for the violation of the ordinances in question, without the existence of one of the enumerated circumstances, would be to impair the contract obligations contained in its franchise. The ordinances in question relate to the speed of cars within the corporate limits of appellee and at street crossings, the right of way of its fire departments over its streets, and the duty of persons in charge of street cars to stop the same and remain stationary upon the approach of any fire apparatus. The adoption of these ordinances was clearly within the police power of appellee, as con
It is also contended that since the ordinances in question provide penalties for their violation, they do not afford a basis for civil liability. It is well set-tied in this state, that the violation of a duty imposed by a statute or a municipal ordinance is negligence per se, and where injury flows directly therefrom, as a natural and probable result of the wrongful act, unaffected by the contributory negligence of the injured party, a liability is incurred by the wrongdoer. Pennsylvania Co. v. Hensil (1880), 70 Ind. 569, 36 Am. Rep. 188; Cleveland, etc., R. Co. v. Tauer (1911), 176 Ind. 621, 96 N. E. 758, 39 L. R. A. (N. S.) 20; Jeffersonville Mfg. Co. v. Holden (1913), 180 Ind. 301, 102 N. E. 21; Steiert v. Coulter (1913), 54 Ind. App. 643, 102 N. E. 113, 103 N. E. 117. The fact that a statute imposes a penalty for its violation will not prevent an action for damages resulting therefrom. Inland Steel Co. v. Yedinak (1909), 172 Ind. 423, 87 N. E. 229, 139 Am. St. 389; Prest-O-Lite Co. v. Skeel (1914), 182 Ind. 593, 106 N. E. 365, Ann. Cas. 1917A 474; Davis Coal Co. v. Polland (1902), 158 Ind. 607,
We agree with appellant that the violation of an ordinance will not sustain an action for negligence unless such violation is the proximate cause of the injury of which complaint is made. This rule, however, cannot aid appellant in the instant case, as the jury found in favor of appellee on the question of proximate cause, and as there is some evidence to sustain such finding, we are bound thereby. We also hold that the evidence tends to establish facts and circumstances, which warrant an inference, that appellant
Appellant has challenged the sufficiency of the evidence to sustain the finding of the jury with reference to the negligence of appellant, and the contributory negligence of the firemen in charge of appellee’s truck at the time of the alleged collision. It suffices to say in this regard, that these questions were submitted to the jury under instructions favorable to appellant, and, as there is some evidence to sustain the finding of the jury with reference thereto, we are bound thereby. Dorrell v. Herr (1916), 184 Ind. 445, 111 N. E. 614; National Life Ins. Co. v. Headrick (1916), 63 Ind. App. 54, 112 N. E. 559.
Appellant complains of the action of the court in giving instructions Nos. 2 and 3. There was no error in giving said instruction No. 2, as appellant could not escape liability for injury, resulting from its violation of the ordinances in question, because it did not appear that it had agreed to be bound thereby. Instruction No. 3 relates to the jury’s consideration of evidence of a character held to be competent in the case of Chicago, etc., R. Co. v. Spilker (1893), 134 Ind. 380, 33 N. E. 280, 34 N. E. 218. In the light of this decision we cannot say that there was any error in giving said instruction. Appellant also complains of the court’s refusal to give instruction No. 3 requested by it. This instruction informed the jury that in the event it found for appellee, the measure of recovery would be the penalty provided for the violation of the ordinance given in evidence. In view of what we have said in considering other questions, there was no error in refusing to give this instruction.