Dieckman v. Louisville & S.I. Traction Co.

• Decision Date: 11 March 1910
• Docket Number: No. 6,799.,6,799.
• Citation: 91 N.E. 179,46 Ind.App. 11
• Parties: DIECKMAN v. LOUISVILLE & S. I. TRACTION CO.
• Court: Indiana Appellate Court

46 Ind.App. 11

91 N.E. 179

DIECKMAN

v.LOUISVILLE & S. I. TRACTION CO.

No. 6,799.

Appellate Court of Indiana, Division No. 2.

March 11, 1910.

On petition for rehearing. Petition denied.

For former opinion, see 89 N. E. 909.

RABB, P. J.

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 the appellee in ruling on the demurrer to the complaint can be made to offset an error committed by the court against the 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, 79 Ind. 430;Town of Greendale v. Suit, 163 Ind. 282, 71 N. E. 658;Davis v. Booth, 10 Ind. App. 364, 37 N. E. 818;Goodman v. Niblack, 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 was 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 deceased 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 “the 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 18 miles per hour, or 5 miles or 50 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 the appellee negligently ran its car against appellant's intestate, 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 set forth specifically in the complaint or not. Indianapolis, etc., v. Marschke, 166 Ind. 496, 77 N. E. 945, and authorities there cited; Knoefel v. Atkins, 40 Ind. App. 428, 81 N. E. 600, and authorities there cited. Indianapolis v. Marschke, supra, was an action very similar to the case at bar, brought by the appellee against the Indianapolis Street Railway Company, for an injury 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 the defendant in running its car at a high rate of speed, and a failure to give proper signals. The court gave the jury an instruction authorizing them to return a verdict in favor of the plaintiff, if the evidence...