Baldwin Piano Co. v. Allen

• Decision Date: 10 January 1918
• Docket Number: No. 23099.,23099.
• Citation: 118 N.E. 305,187 Ind. 315
• Parties: BALDWIN PIANO CO. v. ALLEN.
• Court: Indiana Supreme Court

187 Ind. 315

118 N.E. 305

BALDWIN PIANO CO.

v.ALLEN.

No. 23099.

Supreme Court of Indiana.

Jan. 10, 1918.

Appeal from Circuit Court, Hamilton County; Ernest E. Cloe, Judge.

Action by Moses Allen against the Baldwin Piano Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Instruction No. 7 given by the court on its own motion was as follows:

“The court further instructs you that instructions heretofore given are applicable to each paragraph of complaint if the material allegations of said paragraph or paragraphs of complaint are proven by a fair preponderance of all the evidence.”

Henley, Fenton & Joseph, of Indianapolis, for appellant. S. A. Clinehens, of Indianapolis, Meade Vestal, of Noblesville, and Geo. Shirts and Chas. E. Cox, both of Indianapolis, for appellee.

SPENCER, C. J.

Appeal from a judgment for $8,000 recovered by appellee on account of personal injuries which he sustained while in the employ of appellant. The complaint is in two paragraphs, and, although no question is presented as to the sufficiency of either, a brief statement of the substance of each will serve better to indicate the issues of law which we are required to determine.

The first paragraph of complaint alleges that on the day of his injury appellee was at work on a certain automobile truck owned by appellant, and then used by it in the transportation of pianos and other articles of merchandise to various places in the city of Indianapolis; that the duties of appellees's employment required him to ride on said truck in making deliveries to and from appellant's store and to assist in the loading and unloading of pianos and other articles which it handled; that on the occasion of the accident which resulted in his injury said truck, with appellee riding thereon, was being driven by another of appellant's employés over and along one of the public streets in said city, when one of the steering knuckles broke and one of the front wheels came off, thus causing the body of the machine to drop to the pavement and throw appellee from the truck, to his resulting injury. It is further alleged that the steering knuckle and axle which broke was not made of material of sufficient weight and strength to sustain the continual jar to which it was subjected under appellant's use of the truck, and that its breaking was due to a crystallization of the metal under that strain. Negligence is charged in appellant's use of the truck for the purpose indicated with knowledge of its insufficient and faulty construction and of the dangers attendant on its use in that condition.

The second paragraph of complaint repeats, in substance, though in somewhat greater detail, the allegations of the first, and charges further that appellant had actual knowledge of the insufficiency of the steering knuckles and axles on the particular truck in question on account of their breaking under similar conditions on other occasions prior to the injury of appellee. It is alleged also that appellant's agent and servant in charge of said truck frequently drove the same at a high and dangerous rate of speed over streets that were rough and uneven, and over chuckholes and other depressions in said streets, thus increasing the strain and tension to which the weak and insufficient parts of the truck were subjected, all to the knowledge of appellant, and that on the occasion in question said servant was driving said truck over a public street at the negligent, dangerous, and unlawful speed of 25 miles per hour, thereby greatly increasing the strain on the steering knuckles on appellant's truck and causing one of the same, in its weakened and insufficient condition, to break, with resulting injury to appellee.

The first assignment is that the trial court erred in overruling appellant's motion to separate the several causes of action contained in appellee's second paragraph of complaint, but counsel have carefully avoided any attempt to point out the various causes of action which, it is claimed, are there stated, and we are unable to discover them. It is true that different acts of negligence which are alleged to have united in causing the injury complained of are set forth in the one paragraph, but there is no objection to that form of pleading. Wabash R. Co. v. McDoniels, 183 Ind. 104, 109, 107 N. E. 291;Chicago, etc., R. Co. v. Barnes, 164 Ind. 143, 149, 73 N. E. 91;Pittsburgh, etc., R. Co. v. German Ins. Co., 44 Ind. App. 268, 271, 87 N. E. 995.

[3] Furthermore, the overruling of a motion to separate a complaint into paragraphs is not reversible error. Huntington Light, etc., Co. v. Spell, 185 Ind. 30, 32, 107 N. E. 741, 111 N. E. 311; Richwine v. Presbyterian Church, 135 Ind. 80, 85, 34 N. E. 737;Adans v. Antles, 57 Ind. App. 594, 598, 105 N. E. 931.

In support of its assignment that a new trial should have been granted by the circuit court, appellant earnestly contends that instruction 8 given at the request of appellee is erroneous. This instruction told the jury, in effect, that if, at the time of the accident in question, appellant's motor truck was being driven at a rate of speed greater than is allowed by law, appellee should not be held to have assumed the risk of any injury occasioned by such unlawful operation. No objection is urged against this...