Conradt v. Clauve

• Decision Date: 16 February 1884
• Docket Number: 10,501
• Citation: 93 Ind. 476
• Parties: Conradt et al. v. Clauve
• Court: Indiana Supreme Court

93 Ind. 476

Conradt et al. v. Clauve

No. 10,501

Supreme Court of Indiana

February 16, 1884

From the Miami Circuit Court.

J. M Brown, N.H. Antrim, H. J. Shirk and J. Mitchell, for appellants.

E. T Reasoner, R. J. Loveland and J. L. Farrar, for appellee.

OPINION

Franklin C.

Appellee filed a complaint against appellants, consisting of two paragraphs; a motion to strike out parts of the first paragraph was overruled.

A demurrer was overruled to the first paragraph and sustained to the second. An answer in three paragraphs was filed to the first paragraph of the complaint. On motion of the plaintiff the second and third paragraphs of answer were struck out, the first being a denial.

There was a trial by jury; verdict for the plaintiff for $ 153. The plaintiff remitted $ 13; and over a motion for a new trial, judgment was rendered for the plaintiff for $ 140.

The first specification of error is the overruling of the motion to strike out parts of the first paragraph of the amended complaint.

This motion is not made a part of the record by bill of exceptions or order of the court, and is not properly a part of the record. Nor could the ruling constitute available error if properly in the record. Lake Erie, etc., R. W. Co. v. Kinsey, 87 Ind. 514.

The second specification of error is the overruling of the demurrer to the first paragraph of the last amended complaint. This paragraph of the complaint substantially alleges that the defendants are, and were at the time of the injuries complained of, to wit, on the 16th day of September 1881, the owners, managers and controllers of certain fair grounds, situate in Miami county, Indiana, and were engaged in the business of holding public fairs thereon, under the name of the Miami County Fair Association; that said grounds consisted of an enclosed tract of land, and that defendants charged fees for admittance therein by the public when fairs were thereon being held; that on said day they had a public agricultural fair progressing thereon; that within said enclosure, at said time, said defendants had set off and allotted a certain portion of ground for practice in shooting with a target gun, the same being a deadly weapon, which the defendants knew was liable to prove fatal to the life and to the injury of the persons and property of those who were on their said grounds unless due precautions should be taken to enclose said gun and target, or to notify the public of its dangerous character; but that the defendants had wrongfully and negligently omitted to take or see that there were taken such reasonable precautions as would shield the said public from danger, and would notify them that said place was dangerous; that on said day, and while said fair was in session, this plaintiff attended the same, and paid the customary price of admission thereto for himself, his horse, buggy and harness; that while within said enclosure, at said time, and being utterly ignorant of the location or existence of said gun, or that said portion of ground was reserved for target practice, and not knowing that he was sustaining any danger to himself or property, this plaintiff seeing other horses hitched to the fence near by, and deeming it the proper hitching place, drove his horse and hitched him to the fence aforesaid within the portion of ground so negligently left open, and that soon thereafter, without plaintiff's fault or negligence, his said horse, while standing so hitched, was shot and killed by a ball fired from said target gun in the course of the practice for which the same had been...