Terre Haute, I.&E. Traction Co. v. Maberry

• Decision Date: 06 January 1913
• Docket Number: No. 7,770.,7,770.
• Citation: 52 Ind.App. 114,100 N.E. 401
• Parties: TERRE HAUTE, I. & E. TRACTION CO. v. MABERRY.
• Court: Indiana Appellate Court

52 Ind.App. 114

100 N.E. 401

TERRE HAUTE, I. & E. TRACTION CO.

v.MABERRY.

No. 7,770.

Appellate Court of Indiana, Division No. 1.

Jan. 6, 1913.

Appeal from Circuit Court, Hendricks County; James L. Clark, Judge.

Action by Amos F. Maberry against the Terre Haute, Indianapolis & Eastern Traction Company. Judgment for plaintiff, and defendant appeals. Affirmed.Brill & Harvey, of Danville, and W. H. Latta, of Indianapolis, for appellant. Ottis E. Gulley, of Danville, and Thomas W. Perkins, of Indianapolis, for appellee.

SHEA, J.

This was an action by appellee against appellant for damages for the death of appellee's minor son, caused by the alleged negligent acts of appellant. The complaint was in two paragraphs, to each of which appellant's separate demurrer was overruled. Issues were joined by a general denial filed to each paragraph of the complaint. The cause was tried by a jury, and a verdict rendered in favor of appellee. Appellant filed a motion for a new trial, which was overruled, and judgment rendered on the verdict.

The errors assigned are: (1) The overruling of appellant's demurrer to each paragraph of the complaint; (2) the overruling of appellant's motion for a new trial.

The first paragraph of the complaint, in substance, alleges: That appellant, on June 24, 1908, owned and operated an interurban railroad through Hendricks county, Ind., upon which cars were operated by electric power. That at the point where the accident happened appellant's road was north of and adjacent to a public highway lying parallel to said railroad, and at that time appellee, with his family, occupied a residence within 10 feet of the north line of appellant's right of way, fronting toward said highway and right of way. There was no fence between appellant's road and said highway, but appellant had erected and was maintaining a fence along the north line of its right of way, immediately south of appellee's residence, with an opening therein as a means of ingress and egress to and from appellee's residence across said track to a mail box located upon said highway, which mail box had been so placed by appellee to receive his mail from the rural carrier. On June 24, 1908, at about 10:20 a. m., when a car was approaching from the west on appellant's track, appellee's son Virgil, 7 1/2 years old, went from the residence across the track to the mail box to get mail. The place where the child crossed the track was in plain, unobstructed view of the motorman operating the car from the time said car came within one-quarter of a mile west of said crossing, continuously until it reached said crossing. The car was equipped with a gong and whistle that could be heard for more than one-quarter of a mile when properly operated, and it was the duty of the motorman to keep a close watch ahead as he approached the crossing, and to sound the gong and blow the whistle to warn any one who might be in the act of crossing of the approach of said car. “That said defendant, by its motorman, agents, and servants, disregarding its duty and obligations as aforesaid, unlawfully, carelessly, and negligently failed, neglected, and refused to sound the gong or blow the whistle that was on said car to warn said child of its approach, and of the danger said child was in, but that said defendant, by its motorman, agents, and servants, unlawfully, carelessly and negligently ran said car upon and against said child with great force and violence, and thereby inflicted upon said child severe, permanent, and lasting injuries from which said child died.” Appellee is the father of said Virgil Maberry, and entitled to his services until he became of age, and by the wrongful acts of appellant he has been deprived of said services.

The second paragraph of complaint is substantially the same as the first, except that it is alleged therein that appellant, by its motorman, agents, and servants, willfully ran its car against said Virgil Maberry and injured him, from which injuries he died, etc.

[1] Objection is made to the first paragraph of the complaint, because, it is urged, the specific acts of negligence are not sufficiently set out, and that no acts are complained of as the proximate cause of the injury. It would require much discrimination and refinement of expression to say that specific acts of negligence are not alleged; but we may safely say this paragraph contains the general allegation that there was a negligent failure to sound the gong with which the car was equipped, which could have been heard by a person approaching said crossing when said car was a quarter of a mile or more away, and that said motorman negligently and carelessly failed to sound said gong, and negligently ran said car against said child, thereby causing the injury. The general allegation is sufficient to withstand a demurrer.

Section 343, Burns 1908, upon the subject of complaints, says it shall contain “a statement of the facts constituting the cause of action, in plain and concise language, without repetition, and in such manner as to enable a person of common understanding to know what is intended.”

[2] While the paragraph of complaint cannot be said to be a model pleading, it contains the general allegation of negligence of appellant resulting in the injury complained of, and is good as against a demurrer. It is settled by an unbroken line of decisions that objection for the cause stated can be taken only by a motion to make the complaintmore specific. “A complaint to recover for a personal injury in this state is sufficient to withstand a demurrer under the statutes of this state, when it characterizes the act which resulted in the injury as having been negligently or carelessly done without alleging the specific facts constituting the negligence.” Louisville, etc., Ry. Co. v. Jones, 108 Ind. 551, 9 N. E. 476;Lake Erie, etc., Ry. Co. v. Fike, 35 Ind. App. 554, 74 N. E. 636;Cincinnati, etc., R. Co. v. Gaines, 104 Ind. 526, 4 N. E. 34, 5 N. E. 746, 54 Am. Rep. 334;Louisville, etc., R. Co. v. Krinning, 87 Ind. 351.

[3] In the absence of a motion to make more specific, a complaint stating decedent's injury, and alleging that it was caused as a consequence and solely by reason of defendant's negligence, sufficiently charged actionable negligence. Indianapolis, etc., Traction Co. v. Newby, 45 Ind. App. 540, 90 N. E. 29, 91 N. E. 36;Princeton Coal, etc., Co. v. Roll, 162 Ind. 115, 66 N. E. 169;Coddington v. Canaday, 157 Ind. 243, 61 N. E. 567.

The second paragraph of the complaint is based upon the alleged willful misconduct of appellant's servants, and is sufficient to withstand a demurrer.

The demurrers were properly overruled.

In support of the motion for a new trial appellant insists that the evidence fails utterly to sustain the charge of willfulness. On this issue, the verdict, it insists, is contrary to law, and therefore appellant's second instruction tendered and refused by the court, which directed the jury to return a verdict peremptorily for the defendant, should have been sustained.

[4] The evidence disclosed that the motorman did see this boy approaching the track, when the motorman was a distance of almost one-quarter of a mile therefrom, and that he watched him continuously until within 50 or 100 feet of the point where the boy was struck before sounding the whistle or making any effort to stop the car; that he knew that the boy's attention was directed to a postal which he received from the mail carrier and was conveying to his home. No reason is given by the motorman, or shown by the evidence in any form, for the failure to sound the whistle or gong at a sufficient distance to attract the boy's attention before he had reached the point of danger. The car was going at speed sufficient to drive it 150 to 200 feet beyond the point where it struck the boy. No reason is given for failure to stop the car sooner. Under numerous authorities it is the judgment of this court that the jury might very well have concluded that the conduct of the motorman was willful.

In the case of Gregory, Adm'r, v. C., C., C. & I. Railroad Co., 112 Ind. 385, 14 N. E. 228, it is said: “As a rule of evidence, the presumption that every person intends the natural and probable consequences of his wrongful or unlawful acts applies as well in civil as...