Dyer v. Noll, 15999.

• Decision Date: 09 May 1938
• Docket Number: No. 15999.,15999.
• Citation: 14 N.E.2d 760,105 Ind.App. 241
• Parties: DYER v. NOLL.
• Court: Indiana Appellate Court

105 Ind.App. 241

14 N.E.2d 760

DYER

v.NOLL.

No. 15999.

Appellate Court of Indiana, in Banc.

May 9, 1938.

Appeal from Sullivan Circuit Court; Martin L. Pigg, Judge.

Action by Elbert Dyer against James M. Noll for damage to plaintiff's automobile as the result of a collision with defendant's colt, which was running at large on a highway. From a judgment for defendant, plaintiff appeals.

Affirmed.

Earl S. Cummings, of Sullivan, for appellant.

Chas. H. Bedwell and Jas. W. Sinclair, both of Sullivan, for appellee.

BRIDWELL, Judge.

Appellant's automobile was damaged as a result of a collision between it and a colt owned by appellee, which was running at large on a highway over which appellant was traveling in his automobile, and this action was brought to recover for such property damage. Appellee filed a demurrer to appellant's amended complaint on the ground that it did not state facts sufficient to constitute a cause of action. This demurrer was sustained, appellant excepted and refused to plead further, whereupon judgment was rendered in favor of appellee, “that plaintiff (appellant) take nothing by this action,” and that defendant (appellee) recover costs. This appeal followed, appellant assigning as error the action of the court in sustaining the demurrer to his amended complaint.

Omitting its formal parts, the amended complaint is as follows:

“The plaintiff for his second amended complaint for damages * * * complains of the defendant * * * and for cause of action says, that for a long time prior to and on the 13th day of November, 1936, the defendant was the owner and the possessor of certain animals, to-wit: one horse and one colt.

“That while defendant so owned and possessed said animals, defendant did on the said 13th day of November, 1936, at the hour about 6 o'clock P. M., for the purpose of keeping said animals during the said nighttime wrongfully and negligently turned said animals loose and unattended out into a field adjacent to a much traveled public highway, to-wit: State highway 54, with no sufficient fence between said highway and the said field to prevent said animals from wandering over, upon and along said highway all of which the defendant had notice. That by reason of defendant's aforesaid negligence one of said animals, to-wit: the colt, did wander loose and unattended upon and along said highway 54, and was so wandering along and upon said highway 54 at the time of plaintiff's injury, damages and collision as hereinafter set out and described.

“Plaintiff further says that about the hour of 9:30 P. M. on the aforesaid day it was dark and foggy and at which time this plaintiff was lawfully and carefully driving his automobile, to-wit: a Plymouth coupe, model of 1934, along and upon said State highway 54 in Gill Township, within Sullivan county, Indiana, and at said time defendant's colt by reason of defendant's negligence as hereinbefore alleged was then and there standing loose and unattended nearby the main traveled portion of said highway 54 upon which main traveled portion this plaintiff was then driving as aforesaid; that said colt did then and there suddenly become frightened, confused and blinded by the lawful glare of the lights on plaintiff's automobile and by reason thereof said colt did run directly in front of plaintiff's automobile and did collide therewith, without any fault or negligence whatever on the part of this plaintiff.

“That by reason of the aforesaid collision as above described this plaintiff's automobile was wrecked and damaged in the following particulars, to-wit: (here follows a detailed description of the damages to the automobile).

“That immediately prior to said collision plaintiff's automobile was of the value of $435.00 and that immediately after the collision and by reason thereof said automobile was of the value of $200.

“That during the time said animal was so allowed to be in and upon said Highway 54, in said Gill Township, there was in existence no order of the board of...