Apperson v. Lazro
| Decision Date | 05 February 1909 |
| Docket Number | 6,249 |
| Citation | 87 N.E. 97,44 Ind.App. 186 |
| Parties | APPERSON ET AL. v. LAZRO |
| Court | Indiana Appellate Court |
Rehearing denied April 29, 1909, Reported at: 44 Ind.App. 186 at 195.
Transfer denied June 24, 1909.
From Grant Circuit Court; H. J. Paulus, Judge.
Action by John Lazro against Edgar Apperson and another. From a judgment on a verdict for plaintiff for $ 1,000, defendants appeal.
Affirmed.
J. C Blacklidge, C. C. Shirley and Conrad Wolf, for appellants.
J. A. Shunk, John F. Lawrence and D. E. Rhodes, for appellee.
Appellee in this action recovered $ 1,000 damages for injuries alleged to have been sustained by reason of appellants' negligence in driving an automobile against and over him on a public highway.
The complaint was originally in four paragraphs. The second and fourth were withdrawn before the cause was submitted to the jury, leaving the first and third, to each of which a demurrer was overruled.
The errors assigned are: (1) The complaint does not state facts sufficient to constitute a cause of action; (2) the overruling of the demurrer to the first paragraph of the complaint; (3) the overruling of the demurrer to the third paragraph of the complaint; (4) the overruling of appellants' motion for judgment on interrogatories; (5) the overruling of appellants' motion for a new trial.
The facts briefly stated are as follows: On June 5, 1902, the plaintiff, who was sixty-four years of age and had very defective eyesight, was traveling on foot, upon a public highway, from his home in the town of Mexico to the city of Peru. While traveling south upon the western edge of the roadway, he was startled by the approach of defendants' automobile, which was traveling northward upon the road, when it was about thirty feet in front of him. In attempting to get out of the way he jumped toward the east, into the road. At this time the machine was turned sharply to the west, and the front hub on the east side struck the right side of plaintiff, who was thrown a considerable distance and severely injured.
Counsel for appellants insist that the first paragraph of the complaint is bad, because it in noway charges them with any actionable negligence. In part it reads thus: Said defendants "then and there riding in, and in the possession and control of, a certain automobile, carelessly, negligently and recklessly ran and operated said automobile at a high, reckless and dangerous rate of speed, over and along the western edge of the beaten track on the western edge of the highway, toward and against said plaintiff, and thereby knocked him down, dragged him across to the opposite side of said highway, and ran upon and over him, to plaintiff's great injury." It may be conceded that the phraseology of the complaint in its logical arrangement is not what it should be, yet it is difficult to see how any construction can be placed upon it other than that said defendants carelessly, negligently and recklessly ran and operated said automobile toward and against said plaintiff, and thereby knocked him down. 4 Ency. Pl. and Pr., 746. See, also, Platter v. City of Seymour (1882), 86 Ind. 323; City of North Vernon v. Voegler (1885), 103 Ind. 314, 2 N.E. 821.
It is also urged that the third paragraph of the complaint is defective, in that it does not show that appellants might have turned to the right, and that there was unobstructed space in the road upon which they might have turned; that appellants were aware of the presence of appellee, or that there was light enough to see, citing Walkup v. May (1894), 9 Ind.App. 409, 36 N.E. 917. That case, however, is not in point. The only question in that case being the correctness of the court's action upon the special verdict, the sufficiency of the complaint not being in issue. But it has been held repeatedly that a general allegation of negligence is sufficient to withstand a demurrer to the complaint for want of facts, and, under such allegation, the facts constituting negligence may be given in evidence. Cleveland, etc., R. Co. v. Wynant (1885), 100 Ind. 160; Louisville, etc., R. Co. v. Jones (1886), 108 Ind. 551, 566, 9 N.E. 476; Cleveland, etc., R. Co. v. Berry (1899), 152 Ind. 607, 46 L. R. A. 33, 53 N.E. 415; Duffy v. Gleason (1901), 26 Ind.App. 180, 58 N.E. 729; Van Camp, etc., Iron Co. v. O'Brien (1902), 28 Ind.App. 152, 62 N.E. 464.
The strict law of the road--that where one is traveling in a vehicle and meets another vehicle he must turn to the right--does not obtain as to footmen. Elliott, Roads and Sts. (2d ed.), § 834; Cotterill v. Starkey (1839), 8 Car. & P. *691; Yore v. Mueller Coal, etc., Co. (1899), 147 Mo. 679, 49 S.W. 855. "All persons have a right to walk in a public highway as well as to ride or drive upon it; their rights are equal, and both footmen and drivers are required to exercise such care and prudence as the circumstances demand." Elliott, Roads and Sts. (2d ed.), § 834. See, also, Simons v. Gaynor (1883), 89 Ind. 165; Indiana Springs Co. v. Brown (1905), 165 Ind. 465, 1 L. R. A. (N. S.) 238, 74 N.E. 615; Angell, Highways (3d ed.), § 341. "Such care," then, "must be in proportion to the danger or the peculiar risks in each case." Hannigan v. Wright (1905), 5 Penne. 537, 63 A. 234. And see Green v. Eden (1900), 24 Ind.App. 583, 56 N.E. 240. This care, however, must be reciprocal. As said by the court in Hannigan v. Wright, supra: When this accident occurred the appellants were travelers in their automobile upon a public highway, and the appellee was a pedestrian on the same road. Their respective rights and duties toward each other, under these circumstances, were such that, although each had the right to pass and repass, neither could so negligently exercise that right as to injure the other.
It is a well-settled rule of the common law that there can be no recovery of damages for injuries inflicted upon one person by another, if the injured person by his own negligence proximately contributed to the injury. 4 Am. and Eng. Ency. Law, 15; City of Indianapolis v. Cook (1884), 99 Ind. 10.
In this case, the plaintiff was infirm, and had such defective eyesight that, according to his own testimony, he was unable to distinguish the features of a person within conversational distance. He was walking along the western edge of the beaten roadway, looking downward, it seems, to make sure of his footing. Other than this there appears to have been nothing unusual or extraordinary in his conduct, until he was startled by the approach of the automobile. Up to this time there was nothing in his actions that would indicate carelessness or negligence on his part. The fact that he was almost blind and was traveling on the highway unattended does not constitute negligence. Neff v. Inhabitants of Wellesley (1889), 148 Mass. 487, 20 N.E. 111, 2 L. R. A. 500. In Stringer v. Frost (1888), 116 Ind. 477, 2 L. R. A. 614, 9 Am. St. 875, 19 N.E. 331, the court said: "Children and infirm persons, as well as those who are of mature years, and in the vigor and activity of health, have the right to...
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