Evansville & S. Traction Co. v. Spiegel

• Decision Date: 07 April 1911
• Docket Number: No. 7,194.,7,194.
• Citation: 94 N.E. 718,49 Ind.App. 412
• Court: Indiana Appellate Court
• Parties: EVANSVILLE & S. TRACTION CO. v. SPIEGEL.

49 Ind.App. 412

94 N.E. 718

EVANSVILLE & S. TRACTION CO.

v.SPIEGEL.

No. 7,194.¹

Appellate Court of Indiana, Division No. 2.

April 7, 1911.

Appeal from Circuit Court, Warrick County; Roscoe Kiper, Judge.

Action by George P. Spiegel against the Evansville & Southern Traction Company. From a judgment for plaintiff, defendant appeals. Reversed, and new trial granted.

For dissenting opinion, see 97 N.E. 949.Robinson & Stilwell, for appellant. Hiram M. Logsdon, Albert J. Veneman, and Henry F. Fulling, for appellee.

LAIRY, J.

This is an action brought by the appellee, George P. Spiegel, against the appellant for damages occasioned by the death of Carl Spiegel, the minor son of appellee, which death is alleged to have been caused by the negligence of appellant in the operation of one of its cars on Main street in the city of Evansville, Ind. The direction of Main street is a little east of north, and the appellant company has a double street car track near the center of said street. Williams street enters Main street from the east, at a point almost opposite to the place where Sycamore street enters it from the west, so that the south line of Williams street, at the point of its connection with Main street, is almost opposite to the point where the north line of Sycamore street connects with it on the west. The accident in which Carl Spiegel lost his life occurred about noon on the 4th day of October, 1907. He came out of Williams street riding a bicycle, and started diagonally across Main street toward Sycamore street, and was struck and killed by a street car going south on the west track.

The complaint is in two paragraphs. The first paragraph charges that appellant was negligent in running its car at a high and dangerous rate of speed through a thickly populated part of the city; that the car was not equipped with emergency brakes or other proper brakes; and that it was not properly equipped with a fender and life guard. The second paragraph of complaint alleges that the appellant was operating under a franchise granted by the city of Evansville which provided that all cars operated by it should be provided with adequate life guards, and that another section of said franchise limited the speed of cars in business streets and in other thickly populated streets to 12 miles per hour. It avers that appellant was violating both of these provisions of its franchise at the time of the accident and injury complained of, in that it was running the car, which struck deceased, through a thickly populated part of the city at a rate of speed in excess of 12 miles per hour, and that said car was not properly equipped with brakes and life guards. A demurrer was overruled to each paragraph of complaint, and this ruling of the court is assigned as error and presents the first question for our decision.

[1] The complaint is attacked on the ground that both of its paragraphs fail to show the causal connection between the negligence charged and the injury complained of. The first paragraph of complaint contains the following allegations on this subject: “That said car was being run at said great and unreasonable and dangerous rate of speed, as aforesaid, until almost upon said child as said child was crossing said track and until it was too late to stop said car before running upon said child by reason of said defective appliance and by reason of said car being so negligently and inefficiently equipped with a hand brake only, as aforesaid, there being no emergency brake on said car; and that said car then and there so run and operated and so negligently and defectively equipped struck said child with great force and violence and threw him forward and down upon the track of said railway, and by reason of the absence of a proper and sufficient fender and life guard said child was thrown beneath said car and in front of the wheels and run upon and over, and then and there instantly killed. That the death of said child was caused by the carelessness, negligence, and recklessness of said defendant.” The second paragraph contains substantially the same averments. True, the complaint does not aver in so many words that the car struck the child by reason of the high rate of speed at which it was running and by reason of the inability of the motorman to stop it on account of the defective brake with which it was equipped; but it is alleged that the car was running at a high and dangerous rate of speed until almost upon the child and until it was too late to stop said car by reason of its being so inefficiently equipped with a hand brake only, and that said car did strike said child and throw it to the track, and that the car ran upon and over it, causing its death, and that the death of said child was caused by the negligence of the defendant. From these facts it appears with sufficient certainty that the injury and death of Carl Spiegel was the result of the negligent acts of the appellant as charged in the complaint.

[2] The rule in favor of pleadings assailed on the ground of uncertainty is a liberal one. The rule at common law is thus stated: “The principle rule, as to the mode of stating the facts, is that they must be set forth with certainty; by which terms is signified a clear and distinct statement of the facts which constitute the cause of action or ground of defense, so that they may be understood by the party who is to answer them, by the jury who are to ascertain the truth of the allegations, and the court who are to give the judgment.” 1 Chitty, Pleading (7th Eng. Ed.) 256. Tested by this rule, we think that the complaint is clearly sufficient, and the demurrer to each paragraph of complaint was correctly overruled.

The case was put at issue by an answer in general denial and was submitted to a jury for trial. The jury returned a general verdict in favor of appellee and, with the general verdict, returned answers to interrogatories. A motion by appellant for judgment in its favor on the interrogatories notwithstanding the general verdict was overruled, and this ruling is assigned as error.

The material facts disclosed by the answers to interrogatories are as follows: The accident for which this action is brought occurred on Main street where it intersects with Williams and Sycamore streets. At this point Main street runs from a little west of south to a little east of north, and there are two street car tracks in Main street. Main street is practically level for three or four blocks north and south of the place where the accident occurred and is paved with brick. Decedent was 13 years old at the time the accident happened. He had possession of his senses of sight and hearing, and was a boy of ordinary intelligence and judgment. He was a boy of average strength for one of his age. He was riding a bicycle with rubber tires and was carrying a basket in one hand and holding the handle bar of the bicycle with the other. The boy was an experienced bicycle rider. When he came out of Williams street, he went diagonally across Main street toward Sycamore street, came out about the middle of Williams street, and was riding at a moderate rate of speed. He had frequently crossed Main street at and near the place of the accident and was familiar with the location and surroundings at that place and knew that cars frequently passed on Main street. The car that struck deceased was going toward the river on the west track, and there was no car passing on the other track at the time and place. There was nothing to obstruct the decedent's view of the approaching car at any time after he rode out of Williams street into Main street until he was struck by the car. If decedent had looked toward the north on Main street at the time he came out of Williams street into Main street, he could have seen a car for a distance of two blocks provided nothing obstructed his view. He could have heard the car approaching for a distance of half a block, had he listened; but there were noises of pedestrians and vehicles in the vicinity that would prevent him from hearing the approaching car. The car was 11 feet high and 9 feet wide. Decedent turned on the west track at a point in a straight line between the middle of Williams street and the middle of Sycamore street, and about 3 feet in front of the car which struck him. There is no evidence as to how far the car was from the point of collision at the time decedent came out of Williams street onto Main street, and the width of Main street is not shown by the evidence. The car was stopped at John street, and was running at the speed of 12 to 15 miles per hour when the collision occurred. The motorman sounded the gong before he reached Williams street and sounded it again after he reached Williams street and before the car struck Carl Spiegel. There is no evidence that decedent looked toward the north on Main street at any time after he came out on Williams street. When he reached the space between the two tracks, there was another bicycle rider coming from the opposite direction in the space between the two tracks, and he was attempting to pass this bicycle rider immediately before he was struck by the car. The motorman reversed the power on his car immediately before he struck decedent, and there was no more effective means of stopping said car. The motorman did all within his power to stop the car when he was within three feet of decedent, but the motorman should have slowed the speed of the car before reaching the intersection of Williams and Main streets.

[3] On behalf of appellant, it is urged that its motion for judgment on the interrogatories notwithstanding the general verdict should have been sustained, for the reason that these answers show that the decedent was guilty of negligence contributing to his death. The general verdict in favor of the plaintiff is a finding of every material fact necessary to a recovery. The special findings of the jury will overthrow the general verdict...