Dempsey v. Test

• Decision Date: 30 March 1933
• Docket Number: No. 14500.,14500.
• Citation: 98 Ind.App. 533,184 N.E. 909
• Parties: DEMPSEY v. TEST.
• Court: Indiana Appellate Court

98 Ind.App. 533

184 N.E. 909

DEMPSEY

v.TEST.

No. 14500.

Appellate Court of Indiana, in Banc.

March 30, 1933.

Appeal from Superior Court, Marion County; Clarence E. Weir, Judge.

Action by Richard Dempsey, by Bessie Scholl, his next friend, against Skiles E. Test. From a judgment in favor of the defendant, the plaintiff appeals.

Judgment affirmed.

Henderson & Henderson, of Indianapolis, for appellant.

Noel, Hickam, Boyd & Armstrong, of Indianapolis, for appellee.

BRIDWELL, Judge.

Appellant filed an amended complaint in three paragraphs against appellee to recover damages for personal injuries. Appellee filed demurrer to each paragraph of the complaint, which was sustained as to each paragraph, to which ruling of the court appellant excepted as to each paragraph separately. Appellant announced his refusal to plead further and elected to stand upon the ruling of the court in sustaining the demurrer as to each paragraph of complaint. Judgment was rendered by the court that the plaintiff (appellant) take nothing by his action and that the defendant (appellee) recover costs. This appeal followed, appellant assigning as error that the court erred in sustaining the appellee's demurrer to each paragraph of appellant's amended complaint.

The first and third paragraphs of complaint predicate liability upon the theory of negligent conduct; the second upon the theory of willful and intentional conduct.

The first paragraph of complaint, in so far as it is necessary to set forth the same herein, in order to understand and determine the legal question presented, is as follows:

“The plaintiff, Richard Dempsey, by his next friend, complains of the defendant, Skiles E. Test, by way of Amended Complaint, and complaining says:

“(1) That on or about the 21st., day of June 1928 the said plaintiff was a boy eleven years of age and was a caddie at the Avalon Country Club. That at said time there was running from the City of Indianapolis, Indiana, to Millersville, Marion County, Indiana, a paved public highway.

“(2) That on said day defendant was the owner of an International, Two ton truck, which had previously been used and was used on said date by said defendant for the sole purpose of hauling products and articles to and from a farm owned by said defendant, located near said Millersville. That on said day said defendant had in his employ one Ed Brinkman, who was driving said truck and performing such work for the defendant at the time and place of the injury hereinafter mentioned.

“(3) That on said day, said plaintiff was walking along the said Millersville Road, going to said Avalon Country Club. That said Ed Brinkman was driving said truck from said City of Indianapolis along said Millersville Road to said farm of said defendant, in the line of his said employment, and, as he drove said truck along said highway for said defendant, he invited and/or permitted this plaintiff to get aboard of said truck and stand on the running board thereof for the purpose of riding thereon. That on said day there was a gravel road or street which came into said Millersville Road at almost right angles, running from the East, and said gravel road joined up to the said Millersville Road. That at the point of said coming together of the two said highways, and near the southeast corner of said intersection, there was a chuckhole of irregular shape and varied width, from the North point of said intersection to the South part thereof, all the way from the beginning point to as much as two feet in width, and in parts said chuckhole varied from one inch to seven inches deep.

“(4) That said truck had a cab as a part thereof which was on the front part of the body thereof and stood higher than the balance of the body by means of structure, which had posts therein, with a seat therein for the driver, wide and long enough for him and one and possibly two other persons to ride seated therein. That on said day said driver was driving in said seat and there were with him two others and not room enough for but two to ride in said seat with him. That there was a running board on the right side of said truck about nine inches wide and about four feet long, and this plaintiff, after being invited and/or permitted to ride thereon, as aforesaid, did climb onto said running board and did hold to a post on said cab by hooking his arm around said post so that his elbow crooked and the said post was covered at the point of contact by said elbow and he did ride on said running board in said position for a distance of about one-half mile, and as he was holding onto said post, as aforesaid, it was reasonably safe for him to ride when and if said truck stayed on said paved highway and did not encounter any obstruction or hit said chuckhole. That said driver operated said truck in a northerly direction at a speed of about fifteen miles per hour, and stayed on the right hand side of said road. That at the time herein mentioned said highway was about sixteen feet wide and wide enough for said driver to have safely passed on said road where said chuckhole was, without hitting the same, and to have passed moving vehicles coming in the opposite direction, or allow other vehicles to pass to the left so as not to have jeopardized the life or limb of anyone in said cab or of plaintiff while riding on said running board, as aforesaid, nor to have jeopardized the said truck or the property, life or limb of any other or others.

“(5) That then and there and for a long time prior thereto, said driver knew said chuckhole was in said highway. He also then and there saw, knew and appreciated that plaintiff was standing and riding on said running board in the manner and way aforesaid, and because thereof was in a dangerous and perilous situation and position to his life and limbs; saw, knew and appreciated that if he hit said chuckhole it would cause a jolt or jerk to said truck sufficient to break plaintiff's hold on said cab and cause him to be either jarred or thrown from said truck; saw, knew and appreciated that plaintiff could not get off of said truck, due to the speed at which it was traveling, as aforesaid, without some injury to plaintiff, and saw, knew and appreciated all of the same in plenty of time either to have stopped said truck or to have swerved its course so as to have avoided hitting said chuckhole, as herein stated, and there was sufficient time and opportunity for him so to have done prior to hitting said chuckhole, as hereinafter alleged. Said driver also saw, knew and appreciated that plaintiff did not know or understand his own danger or perilous situation, as aforesaid, nor the consequences if said driver hit said chuckhole. That notwithstanding all the said driver saw, knew and appreciated, as aforesaid, he continued to drive said truck on the right hand side of said highway, at said rate of speed, and carelessly and negligently drove same at, into and against said chuckhole, when he had the last clear chance to have avoided any injury to this plaintiff, and the right front wheel of said truck so hit said chuckhole, and then, there and thereby caused a big jolt and jar thereto and loosened plaintiff's said hold on said cab and thereby threw said plaintiff from said running board to the ground, all at a time when plaintiff could not, nor before, help himself or extricate himself from said dangerous position, and one of the wheels of said truck passed over his body and did then, there and thereby cause the plaintiff to receive, and he did receive, the injuries and undergo the treatment to heal the same, as follows:” (Here in the complaint is a detailed discription of the injuries, the allegation of damages and the prayer for relief.)

The second paragraph of the complaint alleges the same facts stated in the first paragraph, and charges that the driver of the truck “wantonly, intentionally and wilfully run said automobile at, into and against said chuckhole, wantonly, wilfully and intentionally intending to injure plaintiff thereby, and by said wanton, wilful and intentional conduct said plaintiff was then and there thrown violently off of said truck to the ground and the wheels of said truck passed over his body whereby he received the following injuries. ***”

The third paragraph of complaint is very similar to the first, and we deem it unnecessary to state the allegations thereof, but sufficient to...