Dieckman v. Louisville And Southern Indiana Traction Company
| Decision Date | 11 March 1910 |
| Docket Number | 6,799 |
| Parties | DIECKMAN, ADMINISTRATRIX, v. LOUISVILLE AND SOUTHERN INDIANA TRACTION COMPANY |
| Court | Indiana Appellate Court |
46 Ind.App. 11. At 18.
Original Opinion of November 23, 1909, Reported at: 46 Ind.App. 11.
Petition for rehearing overruled.
OPINIONON PETITION FOR REHEARING.
Appellee in its petition for rehearing earnestly insists that the court in deciding this case overlooked the point made in appellee's brief, that the court below erred in overruling appellee's demurrer to appellant's complaint, and that the judgment should have been affirmed for this reason, and insists upon a decision of this question.
No cross-errors were assigned by appellee calling in question the ruling of the court below upon the demurrer to the complaint, and no error committed by the court below against appellee in ruling on the demurrer to the complaint, can be made to offset an error committed by the court against appellant in giving a peremptory instruction to the jury to return a verdict in appellee's favor.
If the complaint was so defective that no amendment could make it good, this would afford proper ground for an affirmance of the judgment, but error of the court in its action upon the demurrer will not. McCole v. Loehr (1881) 79 Ind. 430; Town of Greendale v. Suit (1904), 163 Ind. 282, 71 N.E. 658; Davis & Rankin etc., Mfg. Co. v. Booth (1894), 10 Ind.App. 364, 37 N.E. 818; Goodman v. Niblack (1880), 102 U.S. 556, 26 L.Ed. 229.
Appellee insists that the complaint should be construed as though the averments contained therein, descriptive of the surroundings at the time the accident happened, and of the speed at which it averred the car was being run at the time, were the substantive and controlling averments of the pleading, and it is contended that these descriptive averments contradict the general charge of negligence, and show the decedent to have been guilty of contributory negligence, and that for this reason the complaint was bad. This is an erroneous view.
The action was for negligence, and there is a general charge contained in the complaint that "defendant negligently * * * caused * * * an interurban car * * * to be run against and upon George W. Dieckman," thereby killing him. The negligent running of the car is the gist of the action, and whether it ran at a speed of eighteen miles per hour, or five miles, or fifty miles, is not material, nor are the other incidental facts averred. The complaint would have been good had all the descriptive and incidental facts been stricken out, and it stood upon the general charge that appellee negligently ran its car against appellant's decedent, thereby killing him. This would furnish the predicate for proof of all incidental facts and circumstances both of commission and omission, which would fairly tend to establish the primary fact charged, whether such incidental facts and circumstances were or were not set forth specifically in the complaint. Indianapolis St. R. Co. v. Marschke (1906), 166 Ind. 490, 77 N.E. 945, and authorities cited; Knoefel v. Atkins (1907), 40 Ind.App. 428, 81 N.E. 600, and authorities cited.
The case of Indianapolis St. R. Co. v. Marschke, supra, was an action very similar to this one, and was brought by appellee against the Indianapolis Street Railway Company, for an injury received at a public street crossing.
The complaint contained no specific averments that would bring the case within the last clear chance doctrine, but there was, as here, a general charge of negligence, and there were, as here, specific characterizations of the act of defendant in running its car at a high rate of speed, and a failure to give proper signals. The court gave to the jury an instruction authorizing it to return a verdict in favor of the plaintiff, if the evidence made a case under the rule of the last clear chance. The giving of this instruction was relied upon as an error entitling defendant to a reversal.
The court said, in deciding this question: ...
To continue reading
Request your trial