Citizens' Street Railway Co. v. Abright

• Decision Date: 26 November 1895
• Docket Number: 1,634
• Citation: 42 N.E. 238,14 Ind.App. 433
• Parties: CITIZENS' STREET RAILWAY COMPANY v. ABRIGHT
• Court: Indiana Appellate Court

42 N.E. 238

14 Ind.App. 433

CITIZENS' STREET RAILWAY COMPANY v. ABRIGHT

No. 1,634

Court of Appeals of Indiana

November 26, 1895

Reported at: 14 Ind.App. 433 at 438.

From the Hendricks Circuit Court.

Judgment affirmed.

Mason & Latta, for appellant.

H. C Allen, for appellee.

OPINION

GAVIN, J.

Appellee sued appellant for negligently running its cars against his horse and wagon.

It is settled law in Indiana, that the general averments of negligence in doing an act and freedom from contributory negligence are sufficient as against a demurrer, unless the facts specifically set forth show them untrue. It is not requisite that the complaint should aver the particular acts constituting the proper care exercised by plaintiff. Ohio, etc., R. W. Co. v. Craycraft, 5 Ind.App. 335, 32 N.E. 297; Hindman v. Timme, 8 Ind.App. 416, 35 N.E. 1046; Louisville, etc., R. W. Co. v. Berkey, 136 Ind. 181, 35 N.E. 3.

Under these authorities, and especially under the recent case of Citizens' Street R. W. Co. v. Lowe, 12 Ind.App. 47, 39 N.E. 165, the complaint is unquestionably good, nor can the negligence charged be deemed limited to the excessive speed of the car.

Where an instruction fairly states the law as far as it goes, but additional propositions might appropriately be added to and connected with it, the instruction is not bad for the want of these additions. As to them, it behooves the party desiring them, to save his rights by presenting a proper instruction embodying them. Hindman v. Timme, supra; Keller v. Reynolds, 12 Ind.App. 383, 40 N.E. 76; Elliott App. Proced., sections 647, 736.

Counsel earnestly insist that the court erred in refusing to instruct the jury that the presumption was that the collision occurred from appellee's own negligence, because so many people cross tracks in safety. Whatever of appellant's legal rights were embodied in these instructions asked were fully covered by the court's requiring appellee to prove not only that appellant's negligence caused the injury, but that his own did not contribute thereto. The presumption asserted by appellant could go no further than impose upon the appellee the burden of establishing by the evidence his freedom from contributory negligence, and this burden rested upon him under the instructions given.

The twelfth instruction we do not find liable to the objections made. The failure to give notice of the car's approach was fairly within the issues as formed by the general averments of the complaint, which not only alleged an excessive rate of speed, but that no care or diligence was exercised by appellant. Benjamin v. Holyoke St. R. W. Co. (Mass.), 35 N.E. 95.

Appellant's eighth instruction was rightly refused, if for no other reason, because it says under certain conditions the motorman was not required to check his speed. If, as there was some evidence to prove, he was running the car at twenty miles an hour, he was required to check its speed. The court gave all to which the appellant was entitled.

The ninth and tenth fall with the eighth, of which they are intended to be logical sequences. They disregard entirely the excessive rate of speed, and lay down a rule in any event, only applicable where the car was running at a reasonable speed.

The principal feature of appellant's fourteenth instruction is, that it proceeds upon the hypothesis that appellee did not listen for the cars at any time or place.

Granting that this constituted negligence upon appellee's part, it does not follow that it was contributory negligence, unless by listening he could have heard. That he could have heard is not embodied in the instruction. We cannot assume as a matter of law that by listening he would have heard the approaching car in time to have avoided the accident, in the absence of any warning given by the motorman, and especially in view of the fact that the noise arising merely from the running of the car would be confused with that of the car just passing from the opposite direction.

The negligence which prevents a recovery is that only which materially contributes to the accident.

There is evidence that appellee, in his buggy or light wagon, was driving north on the east side of Illinois street; that there is a jog of about 127 feet between where East Sixteenth street enters Illinois, and where West Sixteenth street leaves it, the latter being that far north of the former. At East Sixteenth street, appellee concluded he would leave Illinois and go west on Sixteenth street, and for this purpose determined and started to cross the appellant's double tracks. Just then he looked south for two and a half blocks or a quarter of a mile (the blocks being unusually long), and saw no car; he also looked north and saw about a block away a south...