Holland v. Bartch

• Decision Date: 18 September 1889
• Docket Number: 13,844
• Citation: 22 N.E. 83,120 Ind. 46
• Parties: Holland v. Bartch
• Court: Indiana Supreme Court

22 N.E. 83

120 Ind. 46

Holland v. Bartch

No. 13,844

Supreme Court of Indiana

September 18, 1889

From the Wayne Circuit Court.

Judgment affirmed, with costs.

C. C Binkley, for appellant.

T. J Study, for appellee.

OPINION

Olds J.

This is an action for damages. The first paragraph of the complaint alleges that "the plaintiff, on the 16th day of August, 1885, was seated in a two-seated carriage, to which two gentle and well broken horses, both properly harnessed with good and sufficient harness, were properly and securely attached and hitched in the usual way, which said horses were then and there carefully and properly driven by a careful and competent driver seated in said carriage, and was then and there driving said team and carriage in which plaintiff was seated as aforesaid, on the public road and highway leading from Cambridge City, Indiana, to Jacksonburg; and when about two miles east of said Cambridge City, and in said county of Wayne, and driving carefully along and upon said highway, and in the part thereof usually driven upon by such teams and carriages, they were met at the place in said highway last above named by said defendant, seated upon and riding a large bicycle, the wheel of which bicycle was sixty inches in diameter, who then and there negligently and carelessly rode said bicycle at a rapid rate of speed, to wit, fifteen miles per hour, and negligently and carelessly ran the same along and in the center of said highway, at said rapid rate of speed, towards and into the faces of said horses, and in this way approached to within twenty-five feet of the faces of said horses, when and whereby said horses became and were greatly frightened, and became and were wholly unmanageable, and ran away, and in their fright ran along said road at a great speed, and upset said carriage, whereby the plaintiff was thrown violently to the ground," and sustained severe injuries, etc.

The averments of the defendant's acts of negligence are the same in the second and third paragraphs of the complaint as in the first paragraph. There is a variance as to some other averments, it being averred in the second that the strap by which one of the horses was fastened to the end of the pole of the carriage broke, and after the horses became frightened, the defendant dismounted and took hold of the bridle of one of the horses and endeavored to hold them, but let go of the horse before the driver dismounted.

The infancy of the defendant was suggested, and Reuben Bartch was appointed as his guardian ad litem. The defendant moved the court to require the plaintiff to make her complaint more specific as to how and in what manner the defendant rode and used said bicycle negligently and carelessly, and in what the alleged carelessness and negligence of the defendant consisted in the use of the said bicycle, and what acts and conduct of the defendant in riding and using said bicycle were negligently and carelessly done and performed by him, by reason of which said horses were frightened and caused to run away, causing said injuries to the plaintiff alleged in the complaint. Which motion to make each paragraph of said complaint more specific was sustained by the court, and exceptions reserved. The plaintiff refused to amend said paragraphs and make them more specific, and assigns the ruling of the court on the motion as error.

The allegations of the defendant's negligence in these paragraphs of complaint, in brief, charge that the plaintiff and defendant were travelling towards each other upon the highway, the plaintiff in her carriage and the defendant upon his bicycle, and that the defendant then and there negligently and carelessly rode his bicycle, at the rate of speed of fifteen miles per hour, up to and within twenty-five feet of the faces of the horses drawing the carriage in which the plaintiff was seated, whereby the horses became and were greatly frightened and became and were wholly unmanageable.

The allegations of negligence are general, and the theory we take of these paragraphs of complaint is that the negligence sought to be charged consists in the manner in which the defendant rode the bicycle, and not in the fact that he rode it at the rate of fifteen miles per hour, or along the center of the road to and within twenty-five feet of the faces of the plaintiff's horses.

Taking the theory we do of these paragraphs of the complaint, the defendant had the right to have the court require the plaintiff to make her complaint more specific by stating the particular acts constituting the negligence in the riding of the bicycle, that he might know with what particular acts of negligence he was charged. Cincinnati, etc., R. R. Co. v. Chester, 57 Ind. 297; Hawley v. Williams, 90 Ind. 160; Cleveland, etc., R. W. Co. v. Wynant, 100 Ind. 160.

The third paragraph differs somewhat from the first and second in the language used, but the acts charged are the same as in the other paragraphs, and we think the ruling of the court in sustaining the motion to make each paragraph of the complaint more specific was correct.

The next errors assigned are the sustaining the demurrers to the fourth and fifth paragraphs of the complaint.

The fourth paragraph is substantially the same as the first except in the allegations of the negligence of the defendant, which are as follows: "Plaintiff was met at said place in said highway and public road by said defendant, who was then and there seated upon and riding a large bicycle, whose wheel was sixty inches in diameter, which said bicycle, with a rider seated upon it, as was well known to said defendant, was an unusual vehicle with which to travel upon such highway, and as he well knew was a frightful object for ordinary horses to meet, and was well calculated to and did frighten horses unaccustomed to meeting such vehicles with a rider mounted thereon; and well knowing these things, said defendant rode such bicycle at a very rapid rate of speed, to wit, at the rate of fifteen miles per hour, towards and into the faces of said horses, along and upon the middle of said highway, coming towards said horses until he approached to within twenty-five feet of the faces of said horses, which said act...