Grass v. Ft. Wayne & W.V. Traction Co.

• Decision Date: 28 May 1907
• Docket Number: No. 6,049.,6,049.
• Citation: 42 Ind.App. 395,81 N.E. 514
• Court: Indiana Appellate Court
• Parties: GRASS v. FT. WAYNE & W. V. TRACTION Co.

42 Ind.App. 395

81 N.E. 514

GRASS

v.FT. WAYNE & W. V. TRACTION Co.

No. 6,049.¹

Appellate Court of Indiana, Division No. 1.

May 28, 1907.

Appeal from Circuit Court, Tippecanoe County; R. P. De Hart, Judge.

Action by John Grass against the Fort Wayne & Wabash Valley Traction Company. From a judgment for defendant, plaintiff appeals. Reversed, with instructions to enter judgment for plaintiff.C. E. Thompson, for appellant. Kumler & Gaylord, for appellee.

WATSON, P. J.

This was an action by the appellant against the appellee to recover damages for injuries alleged in his complaint, which was in two paragraphs. Demurrers were filed by appellee to each paragraph, overruled, cause put at issue by general denial, trial of cause, verdict returned by the jury in favor of plaintiff, assessing his damages at $5,318. The jury also returned 19 interrogatories and answers thereto with the general verdict. The errors assigned are eight in number, but are all embraced in two, which are as follows: (1) The court erred in sustaining the appellee's motion for judgment on the answers to the interrogatories, notwithstanding the general verdict. (2) The court erred in not sustaining the motion for judgment on the verdict. The appellee has assigned cross-errors herein as follows: (1) The court erred in overruling the motion to make complaint more specific. (2) The court erred in overruling the demurrers to each of said paragraphs of complaint. The first paragraph of the complaint, omitting the formal and descriptive averments, averred that the appellant was injured on the 9th day of April, 1904, in a collision with an electric car owned and operated by the appellee, at a crossing on Main street, in the city of Lafayette, near a certain bridge across the Wabash river. The specific acts of negligence charged in the first paragraph against appellee are: First, that it ran its said car after dark without any headlight or any artificial light whatever to give notice of the approaching car; second, that no gong was sounded or bell rung by said defendant as said car approached the said crossing and passed over the same where said plaintiff was traveling and injured; third, that said defendant ran its car at a high and dangerous rate of speed approaching and passing over said crossing where appellant was traveling and where he was struck by appellee's car. There were other allegations relative to the violation of an ordinance of said city; but in our judgment it was not sufficiently averred to make out a valid charge of negligence against appellee, so that we will not further consider this charge. The complaint further avers that the appellee negligently ran its car upon and against appellant thereby injuring him. The second paragraph of complaint contains substantially the same averments as the first, with the additional averment: “That the defendant carelessly and negligently neglected to have said car under control in approaching and passing along and over said crossing, so as to prevent the same from coming in contact and striking plaintiff and injuring him as aforesaid, and by and through the carelessness and negligence of the motorman in charge of said car in carelessly and negligently neglecting to stop said car before the same struck and came into contact with plaintiff and injuring him as aforesaid.”

To determine whether the general verdict or answers to interrogatories shall prevail, the court will look to the pleadings, the verdict, and answers to the interrogatories only. Indiana Gas Co. v. Long, 27 Ind. App. 219, 223, 59 N. E. 410;Goff v. Hankins, 11 Ind. App. 456, 39 N. E. 294;Stoy v. Louisville, etc., R. Co., 160 Ind. 144, 148, 66 N. E. 615;Farmers' Ins. Ass'n v. Reavis, 163 Ind. 321, 329, 70 N. E. 518, 71 N. E. 905. We will therefore first consider the demurrer to the complaint. The objection to the complaint is that each paragraph thereof charges several joint and combined causes of negligence, and it is therefore necessary to a recovery to prove all of said acts. We do not so construe either paragraph of the complaint, but, on the contrary, hold that not more than one act of negligence is averred in each paragraph thereof. At the last analysis the vital charge in the complaint is that the appellee negligently ran its car against and over the appellant, thereby inflicting the injuries complained of, and therefore it is not necessary that more than one specific charge of negligence be made. If one act of negligence or more is well pleaded, the same is sufficient to withstand demurrer for want of facts. Diamond Co. v. Edmonson, 14 Ind. App. 594, 43 N. E. 243;Chicago, etc., R. Co. v. Barnes (Ind. Sup.) 68 N. E. 166, 168;Southern Indiana R. Co. v. Hoggatt, 73 N. E. 1096, 35 Ind. App. 348;Standard Oil Co. v. Bowker, 141 Ind. 12, 40 N. E. 128;Indianapolis St. R. Co. v. Marschke (Sup.) 77 N. E. 945. The trial court did not err in overruling demurrers to each paragraph of the complaint. Section 379, Burns' Ann. St. 1901, provides that in the construction of a pleading the allegations shall be liberally construed, with a view that substantial justice to the parties may be done; but, on the contrary, when allegations are so indefinite or so uncertain that the precise nature of the charge is not apparent, the court may require the pleading to be made definite and certain by amendments thereto. In the case of Smith v. Borden, 160 Ind. 223, 228, 66 N. E. 681, the court said: “Under the provisions of our Civil Code, the rule is well settled that a court in construing a pleading is not required to construe it most strongly against the pleader; but, in order to promote substantial justice between the parties, a liberal construction will be given. In determining the sufficiency of a pleading we must consider it in regard to its general scope and as an entirety.” Section 379, Burns' Ann. St. 1901; Stone v. State ex rel., 75 Ind. 235;Dickensheets v. Kaufman, 28 Ind. 251;Dale v. Thomas, 67 Ind. 570; 4 Ency. Pl. & Pr. 746, 749.

The complaint in this case is quite lengthy, and while it may be criticised for want of directness in its averments, and might have been ordered by the trial court to be made more definite and certain, yet it does with sufficient certainty specifically charge the appellee with negligence in the operation of its said car as herein set forth. We are of the opinion, however, that the facts as therein charged were sufficiently certain and definite, so that no substantial injustice was done between the parties by the overruling of this motion. The court will sustain a motion to make more definite and certain when the precise nature of the charge is not apparent, and when a substantial injustice between the parties would be committed; otherwise the overruling of such a pleading will not be a reversible error. The Indiana Stone Co. et al. v. Steward, 7 Ind. App. 563, 564, 34 N. E. 1019;American Fire Ins. Co. of N. Y. v. Sisk et al., 9 Ind. App. 305, 36 N. E. 659;Lewis v. Albertson, 23 Ind. App. 147, 152, 53 N. E. 1071;Allman v. Wheeler, 101 Ind. 141, 143; Elliott's Trial Procedure, § 665.

The jury returned with its general verdict interrogatories and answers, as follows: No. 3. “Did the Purdue car pass over said bridge coming east in advance of the Soldiers' Home car? Answer: Yes.” No. 6. “What distance was there between said cars as the forward car passed over the bridge? Answer: In our opinion 50 to 100 feet.” No. 9. “Were the electric lights on each of said cars lighted at and before said injury to plaintiff? Answer: Yes.” No. 10. “What was the rate of speed of said cars as they passed over and out of said bridge? Answer: In our opinion running at the rate of 8 miles an hour.” No. 12. “Did the motorman of the car which struck the plaintiff see the plaintiff before the car struck him? Answer: Yes.” No. 14. “Could the plaintiff have seen the car which struck him before he stepped upon the track if he had looked? Answer: Yes.” No. 16. “Was the plaintiff in a place where he could be seen by the motorman of the Purdue car while said car was on the bridge? Answer: Yes.” No. 17. “Did the plaintiff move from the place where he was after the Purdue car came out of the bridge, and step or come upon the south rail of the defendant's track? Answer: Yes.” No. 18. “If you answer interrogatory No. 17 in the affirmative, then state whether or not the motorman of the car which struck the plaintiff could have seen plaintiff in time, by the exercise of ordinary care, to have prevented the injury to him? Answer: Yes.” No. 19. “How far from the place where the plaintiff was struck by the car is that part of the street generally used by pedestrians in crossing said street from the north sidewalk of said street at east end of said bridge? Answer: Right on the crossing.”

The rule is so well established that answers to interrogatories, which are pertinent to the issues considered as a whole, will not overthrow the general verdict, unless the conflict between the two on material questions is so sharp that it cannot be removed by any evidence legitimately admissible under the issues, that we do not deem it necessary to go into the discussion of this question, or to cite any great number of authorities. Vaught v. Barnes, 29 Ind. App. 387, 389, 62 N. E. 93, 63 N. E. 864, 64 N. E. 623;Flickner v. Lambert, 36 Ind. App. 524, 74 N. E. 263;Catterson v. Hall, 37 Ind. App. 341;¹Johnson v. Gebhauer, 159 Ind. 271, 283, 64 N. E. 855;Lake Shore, etc., R. Co. v. Teeters, 166 Ind. 335, 77 N. E. 599, 5 L. R. A. (N. S.) 425. The plaintiff was not bound to establish his freedom from contributory negligence. Prior to the act of 1899, section 359a, Burns' Ann. St. 1901, the burden was upon him so to establish; but by that act the burden of establishing contributory negligence is now upon the defendant. The jury by their general verdict find that ...