Fred Geiger & Sons v. Schmitt

• Citation: 186 Ind. 292,116 N.E. 50
• Decision Date: 16 May 1917
• Docket Number: No. 23137.,23137.
• Court: Indiana Supreme Court
• Parties: FRED GEIGER & SONS v. SCHMITT.

186 Ind. 292
116 N.E. 50

FRED GEIGER & SONS
v.
SCHMITT.

No. 23137.

Supreme Court of Indiana.

May 16, 1917.

Appeal from Supreme Court, Vanderburgh County.

Action by Alvin J. Schmitt against Fred Geiger & Sons. From judgment for plaintiff, defendant appeals. Affirmed.

[116 N.E. 51]

Albert W. Funkhouser, Arthur F. Funkhouser, Robert D. Markel, and Albert C. Funkhouser, all of Evansville, for appellant. O. R. Luhring and A. C. Hawkins, both of Evansville, for appellee.

MYERS, J.

Appellant prosecutes this appeal from a judgment in favor of appellee for $125 on account of damage to his motorcycle. On April 29, 1915, appellee left his motorcycle standing at the north curb line, between Sixth and Seventh, on Main street, in the city of Evansville, which is alleged to be one of the principal business thoroughfares, and most congested by travel, in said city; that appellant, as the complaint alleges, on said date did carelessly and negligently leave one of its wagons or moving vans with a span of horses harnessed thereto without being hitched, chained, tied, fastened, and unattended, near Eighth and on the north side near the curb line of said Main street, in violation of section No. 9 of a certain ordinance then and there in force in said city, which ordinance is entitled:

“An ordinance to regulate the use of streets and highways by vehicles, to regulate traffic and travel thereon, and imposing penalties for the violation thereof.”

Section 9, in so far as it is material here, reads as follows:

“No horse shall be left unattended in any street or highway unless securely fastened, or unless the wheels of the vehicle to which it is harnessed are securely tied, fastened or chained, and the vehicle is of sufficient weight to prevent it being dragged at a dangerous speed with the wheels so secured.”

Section 13 fixes the penalty at not less than $5, nor more than $25, for each offense. That without appellee's fault, appellant's said horses became greatly frightened and ran away, causing said moving van or wagon to run against and over the motorcycle to its damage.

The only error assigned and not waived is the overruling of appellant's motion for a new trial. Under this assignment the only points made by appellant challenge the validity of the ordinance. Appellant asserts that the ordinance is void for the reason that it is indefinite, vague, and uncertain; that the phrases “securely fastened,” “securely tied, fastened, or chained,” “of sufficient weight to prevent it being dragged,” and “at a dangerous speed,” are not technical phrases having a peculiar and appropriate meaning in law, and are to be taken in their plain, ordinary, and usual sense; that they are all comparative terms, without definition or standard of comparison fixed by the ordinance.

[1] Meeting the...