Evansville & O. Valley Ry. Co. v. Woosley

• Decision Date: 28 June 1950
• Docket Number: No. 17905,17905
• Court: Indiana Appellate Court
• Parties: EVANSVILLE & OHIO VALLEY RY. CO., Inc. v. WOOSLEY.

Page 355

93 N.E.2d 355

120 Ind.App. 570

EVANSVILLE & OHIO VALLEY RY. CO., Inc. v. WOOSLEY.

No. 17905.

Appellate Court of Indiana, in Banc.

June 28, 1950.

Robert D. Arkel, Wilbur S. Furlow, Clifton L. Markel, Evansville, for appellant.

John H. Jennings, Evansville, R. Vance Hartke, Evansville, for appellee.

BOWEN, Judge.

This is an appeal from a judgment for the plaintiff in an action for damages for the alleged wrongful death of appellee's husband caused by the alleged negligence of the appellant in a collision between an automobile in which the appellee's decedent was riding and the rear of a passenger bus owned and operated by the appellant.

The cause was tried by a jury on the issues formed by appellee's amended complaint and appellant's answer in four paragraphs. The jury returned a verdict in favor of appellee and against appellant, awarding appellee damages in the amount of $8,500, and judgment was rendered on the verdict. In addition to filing a motion for a new trial, the appellant filed a complaint for a new trial for causes discovered after term, and after time for filing a motion for a new trial had expired, and the court sustained appellee's demurrer to this complaint, appellant refused to plead further, and judgment in this separate action was consolidated by the trial court with the principal action for appeal.

Errors assigned for reversal are that the lower court erred in overruling specifications Nos. 3 and 5 of appellant's motion to strike out parts of appellee's complaint; that the court erred in overruling appellant's motion for a new trial. The grounds of such motion were that the verdict of the jury is not sustained by sufficient evidence and is contrary to law; that the damages assessed by the jury are excessive; that the court erred in overruling appellant's request for a peremptory instruction to return a verdict in its favor at the close of appellee's evidence; that the court erred in giving to the jury certain specified instructions in its motion; that the court erred in giving to the jury certain specified instructions requested by the appellee; that the court erred in instructing the jury partly in writing and partly orally; that the court erred in making certain remarks to the jury; that the court erred in overruling the motion of appellant that the jury be taken to the scene of the accident; and that appellant and appellant's counsel were guilty of misconduct in the trial of the cause.

In the memorandum attached to appellant's motion to strike, references are made to the statute with reference to surplusage and irrelevant matter, and further claim is made that to permit such allegations to remain in the complaint did constitute prejudice to the defendant.

The only effect of overruling appellant's motion to strike out parts of the complaint was to leave surplusage in the record, which, when considered in the light of the allegations of the complaint and the instructions of the court did not prejudice the appellant, and, therefore, did not constitute reversible error. The action of a court in overruling a motion to strike out a part of a pleading does not ordinarily constitute reversible error even though such action be erroneous. American Income Insurance Co. v. Kindlesparker, 1941, 110 Ind.App. 517, 37 N.E.2d 304; Lindley v. Sink, 1940, 218 Ind. 1, 30 N.E.2d 456, 2 A.L.R.2d 772; Butt v. Iffert, 1909, 171 Ind. 554, 86 N.E. 961; Flanagan's Indiana Pleading and Procedure, Sec. 126, p. 181 and cases cited therein; Lowe's Revisions Works Indiana Practice, Vol. 2, Sec. 23.30, p. 127.

The appellant, a motor carrier, was operating a bus on Indiana State Highway #75 on a regular bus route from the City of Evansville, Indiana, to the City of Owensboro, Kentucky. The bus was proceeding up a small hill some four miles north of the Owensboro Bridge in Spencer County, Indiana, between two intersecting roads, Lillipop Road and Leslie Road. The bus stopped with four wheels on the concrete highway for a few minutes on the paved portion of the highway near mail boxes to permit two persons to alight. One person had stepped out of the bus and was standing on the shoulder of the highway when an automobile driven by one Hardison and in which the decedent was riding struck the rear of the bus. Two persons who were riding in the back seat suffered broken ankles. Hardison, the driver, was seriously injured, and Woosley, plaintiff's decedent, died a short time afterward. There was evidence that the stopped bus was obscured from the view of the one approaching the bus from the rear until such car approaching would be about 75 or 100 feet from such bus. The evidence showed that the Hardison automobile in which the deceased was riding and was asleep was approaching the hill, near the crest of which the hus had stopped, at a speed of from 35 to 45 miles per hour traveling in a southerly direction in the rural district of Spencer County, Indiana. As the Hardison automobile came over the break of the hill, the bus was discharging passengers, one of which was on the right shoulder of the road, and a truck was approaching from the south in the only other traffic lane. The driver of the Hardison automobile veered his car to the left and upon seeing the oncoming truck pulled back and struck the rear of the bus.

Appellant's assignments of error present the question as to the allegations of negligence in the complaint and whether under the complaint and the evidence appellant's bus was negligently parked upon the highway. The allegations of negligence contained within the complaint were as follows:

'That at said time and defendant was negligent and careless as follows, to-wit, each of which of said acts of negligence was a direct and proximate cause of said collision and resulting death of the deceased and damage to plaintiff:----

'1. That the driver, Johnson, negligently and carelessly parked said bus at said above mentioned place upon said highway.

'2. That said Johnson negligently and carelessly permitted said bus to remain parked upon said highway.

'3. That said Johnson negligently and carelessly, while said bus was parked as aforesaid, permitted the passengers of his said bus to alight from said bus and to occupy the shoulder of said highway on the right side.

'4. That said Johnson negligently and carelessly failed to give any signal whatsoever, either of the stopping of said bus, or of the fact that same was to continue to remain parked upon said highway.'

The appellant insists that the foregoing specification included allegations of negligence which would not constitute negligence as a matter of law and that such allegations considered in connection with the evidence in this cause do not show that appellant was guilty of negligence in stopping its bus on the highway at the time in question. There is a statute in this State, Section 47-2120, Burns' 1933 which provides as follows: '(a) Upon any highway outside of a business or residence district, no person shall stop, park, or leave standing any vehicle, whether attended or unattended, upon the paved or main traveled part of the highway when it is practicable to stop, park or so leave such vehicle off such part of said highway, but in every event, a sufficient unobstructed width of the roadway opposite a standing vehicle shall be left for the free passage of other vehicles and a clear view of such stopped vehicle shall be available from a distance of two hundred (200) feet in each direction upon such highway. * * *'

There is no question but what there was ample evidence to establish that the appellant in the operation of its bus violated this statute by reason of the fact that there was evidence that a clear view of such stopped vehicle was not available for a distance of 200 feet to the drivers of other vehicles.

The appellant takes the position that by reason of a fact that its bus was a common carrier it is not bound by the provisions of the aforementioned statute. The statute itself does not exempt motor buses and a bus is included as a motor vehicle under the Motor Vehicle Acts.

The appellant had the privilege as a public motor carrier of passengers to pick up and discharge passengers while such bus was being so operated on the public highways, but such picking up and discharging of passengers must not be done in violation of Section 47-2120, Burns' 1933, and the evidence in this cause is sufficient for the jury to have properly concluded that appellant had violated such statute.

The question of the contributory negligence of the driver of the automobile, which negligence under the court's instructions was imputed to appellee's decedent, was a question of fact for the jury to determine. The jury determined this issue adversely to appellant.

The allegations of the complaint charging negligent parking of the bus and negligently permitting the bus to remain parked were clearly sufficient to allege negligence under the provisions of Section 47-2120. As stated in Northern Indiana Transit Co. v. Burk, Ind.Sup.1950, 89 N.E.2d 905, 'parking' under any possible definition includes 'stopping.'

Furthermore, the complaint uses the word 'stopped' and 'parked' interchangeably in the allegations thereof. The appellant violated the provisions of the aforementioned statute, and the allegations of the complaint sufficiently charged such violation and the evidence showed that the provisions of such statute were violated.

The appellant further contends that the alleged negligent stopping of appellant's bus was not the proximate cause of the collision, and that the stopping of the bus was only a condition and a remote cause. This contention of appellant is definitely answered by the Supreme Court in the Northern Indiana Transit Co. v. Burk, supra, in an exhaustive discussion of the question of an automobile striking the rear of the bus and with reference to the question of proximate cause. The negligence of the operator of a motor vehicle in...