Chicago & Calumet Dist. Transit Co. v. Stravatzakes

• Decision Date: 09 March 1959
• Docket Number: No. 1,No. 18904,18904,1
• Citation: 156 N.E.2d 902,129 Ind.App. 337
• Parties: CHICAGO & CALUMET DISTRICT TRANSIT COMPANY, Inc., Appellant, v. George STRAVATZAKES, Appellee
• Court: Indiana Appellate Court

Page 902

156 N.E.2d 902

129 Ind.App. 337

CHICAGO & CALUMET DISTRICT TRANSIT COMPANY, Inc., Appellant, v. George STRAVATZAKES, Appellee.

No. 18904.

Appellate Court of Indiana, Division No. 1.

March 9, 1959.

Owen W. Crumpacker, Theodore M. Gemberling, Lowell E. Enslen, Crumpacker, Gemberling & Enslen, Hammond, for appellant.

Julius H. Sachs, Saul I. Ruman, Rudolph Tanasijevich, Sachs, Ruman & Tanasijevich, Hammond, J. Edward Barce, John Barce, Barce & Barce, Kentland, for appellee.

MYERS, Judge.

This is an appeal from a judgment rendered in an action for personal injuries allegedly caused to appellee by the negligence of appellant's bus driver.

The complaint in general alleged that appellee was a paying passenger on appellant's bus; that while riding as such the bus driver approached a railroad crossing without stopping, as provided by statute, and at a dangerous and reckless rate of speed crossed the tracks with a 'bump' which threw appellee from his seat causing him to strike a handrail beside him, as a result of which he suffered personal injuries.

The issues were joined by appellant's answer denying the charges of negligence as set forth in appellee's complaint.

The cause was tried by a jury, which returned a verdict in favor of appellee in the sum of $21,500, upon which judgment was rendered together with costs.

A motion for new trial was filed by appellant, and upon its being overruled this appeal followed.

The only assignment of error by appellant is that the trial court erred in overruling appellant's motion for a new trial.

Appellant has set forth in its motion for a new trial eleven specifications which it claims constitute error. In its brief appellant has consolidated these into four specifications of error, which are as follows: (1) The verdict is not sustained by sufficient evidence, and thus the court should have sustained appellant's motion for a directed verdict; (2) the court erred in refusing to give appellant's Instruction No. 13; (3) the damages awarded by the jury are excessive; and (4) the court erred in overruling appellant's objections to the admission in evidence of certain hospital bills, and thus erred in refusing to give appellant's Instruction No. 6. These will be taken up in the order set forth above.

Appellant urges that the verdict is not sustained by sufficient evidence, and that therefore its motion for a directed verdict should have been sustained. It charges that the complaint alleges that appellant was guilty of only one act of negligence, being rhetorical paragraph 8, which reads as follows:

'8. That the driver of said bus negligently, carelessly, recklessly and unlawfully failed to bring his bus to a stop before starting over said railroad tracks, as provided by statutes of the State of Indiana.'

Appellant states that appellee relied solely on the contention that the driver violated a legal duty imposed on him by statute, being § 47-2116, Burns' Ind.Stat., which reads as follows:

'(a) The driver of any motor vehicle carrying passengers for hire, or of any school bus carrying any school child, or of any vehicle carrying explosive substances or inflammable liquids as a cargo or part of a cargo, before crossing at grade any track or tracks of a railroad, shall stop such vehicle within fifty (50) feet, but not less than ten (10) feet, from the nearest rail of such railroad and while so stopped, shall listen through an open window or door and shall look in both directions along such track for any approaching train, and for signals indicating the approach of a train, except as hereinafter provided, and shall not proceed until he can do so safely. After stopping as required herein and upon proceeding when it is safe to do so, the driver of any said vehicle shall cross only in such gear of the vehicle that there will be no necessity for changing gears while traversing such crossing and the driver shall not shift gears while crossing the track or tracks.

'(b) No stop need be made at any such crossing where a police officer or a traffic control signal directs traffic to proceed.

'(c) This section shall not apply at street railway crossings within a business or residence district; and it shall not apply to abandoned or unused tracks.'

It is claimed that a violation of this section did not constitute actionable negligence in this case since the intent of the statute was to protect bus passengers from the hazards involved at railroad crossings because of oncoming trains and the danger of collision with those trains; that the statute was not intended to protect bus passengers from being jolted because of rough railroad crossings. Appellant's contention might have been well taken if it were not for the fact that the complaint also contains the following allegations:

'6. That on said date at the time defendant's said bus in which plaintiff was being carried to his destination in said City of East Chicago, Lake County, Indiana, as aforesaid, approached said E. J. & E. from the east, said railroad tracks and crossing were pitted with holes and breaks in the pavement and the rails extended above the paved portion between said rails so as to make said crossing dangerous.

'7. That said bus, on approaching said railroad crossing was traveling at an excessive and dangerous rate of speed, to-wit: 40 miles per hour.

'9. That said bus upon contact with said pitted and broken pavement of said railroad crossing and protruding rails, being driven at the speed aforesaid, was violently thrown up into the air causing plaintiff to be then and there thrown violently up from his seat and upon descending striking him against the seat in front of him and against various objects and parts in and permanent injuries as follows: to-wit: Severe contusions and bruises to his entire body; fractures of 9th, 10th, and 11th ribs on the right side; severe injuries to anterior vertebral ligaments and the bodies of the vertebrae anteriorly; that said fractured ribs resulted in a traumatic pleurisy with adhesions; suffered severe contusion to the muscles of the lumbar area, leaving a permanent myofibrositis of a traumatic nature; suffered severe injury to his intercostal nerve; suffered a violent shock to his entire nervous system; that every organ of his body was so injured that normal functioning of his body has been permanently impaired.'

It is a well-known rule of practice that a plaintiff has a right to allege several acts of negligence in a single paragraph of complaint and recover upon proof of all, or any one, of said acts. Johnnie J. Jones Exposition v. Terry, 1945, 116 Ind.App. 189, 63 N.E.2d 159.

It is also generally recognized that the courts of a state will take judicial notice of its own public statutes and that it is accordingly unnecessary to plead them or to set out the contents or substance thereof. 41 Am.Jur., Pleading, § 11, p. 294.

Contrary to appellant's assertion, appellee's complaint alleged more than one act of negligence. The cases which appellant has cited as supporting its position were all based upon the single allegation that there was a violation of a statute or ordinance which constituted negligence. In two of those cases demurrers to the complaints were filed and this court held in each that the demurrer should have been sustained on the ground that the injury complained of did not fall within the category of those injuries against which the statute or ordinance sought to guard. Vuckis v. Terry, 1934, 98 Ind.App. 256, 183 N.E. 104; New York, C. & St. L. R. Co. v. Martin, 1905, 35 Ind.App. 669, 72 N.E. 654. In the third case cited the court held that the absence of chargeable negligence rendered the complaint bad and the evidence insufficient where the plaintiff charged negligence in the violation of a statute which was not designed for his protection or benefit. Indiana & C. Coal Co. v. Neal, 1906, 166 Ind. 458, 77 N.E. 850.

In this case the jury could have found that the violation by appellant of the Indiana statutes pertaining to speed or the common-law duty to use ordinary care in regard to the speed of appellant's bus were the proximate causes of the injuries. This case is distinguished from the above-cited cases therefore in that appellee relied upon more than one allegation of negligence in his complaint.

There was in force and effect on the date of this accident a statute of the State of Indiana relating to speed regulation, which reads as follows:

'(a) No person shall drive a vehicle on a highway at a speed greater than is reasonable and prudent under the conditions and having regard to the actual and potential hazards then existing. In every event speed shall be so restricted as may be necessary to avoid colliding with any person, or vehicle or other conveyance on or near, or entering the highway in compliance with legal requirements and with the duty of all persons to use due care.

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'(d) The driver of every vehicle shall, consistent with the requirements in subsection (a), drive at an appropriate reduced speed when approaching and crossing an intersection or railway grade crossing, when approaching and going around a curve, when approaching a hill crest, when traveling upon any narrow or winding roadway, and when special hazards exist with respect to pedestrians or other traffic or by reason of weather or highway conditions.' Burns' Ind.Stat., § 47-2004.

It has been held that these rules and regulations are simply declaratory of the rules as they were previously stated and applied under the common law. Bond v. Coats, 1936, 101 Ind.App. 526, 199 N.E. 874; Miles v. State, 1920, 189 Ind. 691, 697, 129 N.E. 10, 11, 12. In the latter case the court said:

'The common law required the driver to take into consideration all of the surrounding and attending conditions and circumstances, including the traffic and use of the way and the danger to life and limb and to the property of others as specifically mentioned in the statute, and that he...