Hammond, Whiting & East Chicago Electric Railway Co. v. Eads
| Decision Date | 15 January 1904 |
| Docket Number | 4,511 |
| Citation | 69 N.E. 555,32 Ind.App. 249 |
| Court | Indiana Appellate Court |
| Parties | HAMMOND, WHITING & EAST CHICAGO ELECTRIC RAILWAY COMPANY v. EADS |
From Lake Circuit Court; W. C. McMahan, Judge.
Action by James S. Eads against the Hammond, Whiting & East Chicago Electric Railway Company. From a judgment for plaintiff, defendant appeals.
Affirmed.
J. B Peterson and Peter Crumpacker, for appellant.
J. K Stinson, J. M. Stinson and A. F. Knotts, for appellee.
Appellee began this action against appellant to recover damages sustained by him, and caused by the alleged negligence of the appellant.
The errors relied upon for a reversal of this judgment are: (1) That the trial court erred in overruling appellant's demurrer to the complaint; (2) that the trial court erred in overruling appellant's motion for a new trial; (3) that the trial court erred in overruling appellant's motion for judgment in its favor on the special findings of the jury notwithstanding the general verdict.
It is averred in the complaint that the appellant is a corporation operating an electric railway in the city of Hammond Indiana, upon a street in said city known as State street, and that it propels its cars by means of electric power; that the appellee was, on the 6th day of July, 1901, driving his horse and wagon along said street north of appellant's tracks near Sohl street, and that when appellee had arrived within ten or twelve feet west of Sohl street, intending to drive north of said street, his horse took fright at the rapid approach of one of appellant's cars which was approaching appellee from the east, and was at the time about 200 feet east of him; that appellee's horse, on account of such fright, ran rapidly, and shied to the north, and the wagon in which appellee was riding struck violently against a pole standing at the corner of State and Sohl streets, and the horse became unmanageable, and reared, and fell back toward the wagon, and wheeled toward appellant's track, running along the track, and that during all of said time appellee's horse was unmanageable; that the horse continued to run along said track in such unmanageable condition for about seventy-five feet, where the appellant's car caught up with the wagon, and said car was carelessly and negligently run into and against appellee's wagon and horse, and the said wagon was broken, the horse injured, and appellee knocked out of his wagon, and thereby severely and permanently injured and crippled.
We think the complaint clearly avers that appellee's injury was the result of appellant's negligence, and that this is all that it was necessary to show in the complaint. The averment that appellee was not guilty of contributing to his injury was unnecessary, and the fact that the complaint contains such an averment does not render it bad; such an averment being immaterial and regarded, at the most, as merely surplusage.
It is contended by counsel for appellant that the evidence does not show that the appellant was guilty of any negligence whatever, and that the evidence shows that the appellee was guilty of contributory negligence and that the injury was the result of an unavoidable accident. It is shown by the evidence that appellant's car which struck appellee's wagon and horse and caused the injury complained of was 200 feet or more east on State street from the place where appellee's horse and wagon was hitched at the time he started to get into the wagon; that when appellee unhitched his horse and stepped into the wagon, and before he had or could reach the lines, the horse jumped and threw him down and the horse started with the wagon and appellee along the side of appellant's track; and that the horse was unmanageable and was drawing the wagon along and near the track, swerving from one side to the other, and the fact that the horse was unmanageable and the danger that appellee was in was fully known and apparent to the motorman who had charge of the car which struck appellee's wagon. It is further shown by the evidence that the motorman, by the exercise of due care, under all the circumstances, might and should have prevented the injury. The evidence also shows that appellee's...
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