Indiana Union Traction Co. v. Love
| Decision Date | 26 November 1912 |
| Docket Number | No. 22,116.,22,116. |
| Parties | INDIANA UNION TRACTION CO. v. LOVE. |
| Court | Indiana Supreme Court |
INDIANA UNION TRACTION CO.
v.
LOVE.
No. 22,116.1
Supreme Court of Indiana.
Nov. 26, 1912.
Appeal from Circuit Court, Boone County; Willett H. Parr, Judge.
Action by Thomas W. Love, administrator, against the Indiana Union Traction Company. From a judgment for plaintiff, defendant appeals. Affirmed.
[99 N.E. 1006]
Transferred from Appellate Court under Burns' Ann. St. 1908, § 1405.
James A. Van Osdol, of Anderson, Louis B. Ewbank and Joseph R. Morgan, both of Indianapolis, W. A. Kittinger, of Anderson, and Samuel L. Ralston, for appellant. Wilson S. Doan and Charles J. Orbison, both of Indianapolis, and A. J. Shelby, of Lebanon, for appellee.
MYERS, J.
Action for damages for the death of one Maria Love. The sole error assigned is as to overruling the demurrer to the complaint.
The complaint in the particulars in question in substance is that on the 11th day of June, 1907, Maria Love was riding as a guest in an automobile owned, controlled, and operated by one Heimes, and he was in control of and operating and running such automobile to the west in and along Thirty-Eighth street, a much traveled and principal thoroughfare within the corporate limits of the city of Indianapolis, Ind.; that Mrs. Love as they approached the crossing of the tracks of appellant over said Thirty-Eighth street looked and listened for an approaching car, and that she did not see or hear any approaching car upon said track until just before Heimes went upon the track, and that she, together with the other guests in the said automobile, called to Heimes to stop the machine, but that he continued to go upon said tracks; that at said time there was a car of this defendant going toward the north upon the east track, and that the view of persons in said automobile to the north was obstructed by a dwelling house, and by two large signboards which were situated near the tracks, and upon the east side of the tracks and north of Thirty-Eighth street; that Mr. Heimes after said car had passed to the north, with his view of the west track obstructed by said house and by said signboards, and by said car moving to the north, failed to see another car of this defendant coming to the south upon the west track and
[99 N.E. 1007]
approaching said crossing from the north, and, when said car had passed to the north, Mr. Heimes turned on the power, and started said automobile across said track, and Mrs. Love looked and listened for approaching cars upon both tracks, but saw and heard no cars on said west track until just as Mr. Heimes started said automobile, and, when she did see a car coming from the north, she, together with the other guests in the car, called to Mr. Heimes, and endeavored to have him stop the automobile before going upon said track; that it was impossible for Mrs. Love to jump from said machine at said time without being threatened with instant death, and that she remained in said automobile when it went upon said tracks for the reason as herein set forth; that at said time defendant was carelessly and negligently running said car upon said west track within the corporate limits of the city of Indianapolis, and approached said Thirty-Eighth street as aforesaid at a high and dangerous rate of speed, to wit, 30 miles per hour; that defendant was negligently failing to observe said crossing; that defendant carelessly and negligently ran said car on said crossing at said high and dangerous rate of speed; that said defendant negligently failed to sound any gong on approaching said crossing, and negligently failed to observe said crossing to see whether any one was about to cross the same, and, by reason of the negligence of said defendant company in operating said cars as aforesaid, defendant ran said car into said automobile with great force and violence, hurling said automobile and its passengers into the air, throwing Mrs. Love about 50 feet in the air, thereby inflicting on her body deep and lasting and mortal injuries from which she soon died; that said death of Maria Love was caused proximately by the negligence of the defendant as aforesaid.
Defendant demurred to the complaint, for the reason that the same does not state facts sufficient to constitute a cause of action. The lower court overruled the demurrer, and appellant excepted. Appellant appeals to this court on the grounds that the lower court was in error in overruling its demurrer (1) because contributory negligence is affirmatively shown by the allegations of the complaint; and (2) that the complaint does not show that any negligence of defendant was the proximate cause of the injuries sued for.
[1][2] Appellant's theory is that the allegation that “it was impossible for said Maria Love to jump from said automobile at said time without being threatened with instant death” is a mere conclusion, and not the pleading of facts which would be admitted by the demurrer, under the rule that only facts well pleaded are admitted by a demurrer for want of facts. Pittsburg, etc., Co. v. Schepman, 171 Ind. 71, 76, 84 N. E. 988;Pittsburgh, etc., Co. v. Peck, 165 Ind. 537, 76 N. E. 163;State v. Casteel, 110 Ind. 174, 187, 11 N. E. 219;Palmer v. Logansport, etc., Co., 108 Ind. 137, 142, 8 N. E. 905;Indianapolis, etc., Co. v. Pressell, 39 Ind. App. 472, 77 N. E. 357. The allegation as made is a conclusion. There is no fact stated showing why she could not have alighted. The speed of the car in which she was riding is not shown, nor her situation, or the reason why she could not have alighted in safety.
[3] However, the allegation was not a necessary one. The fact that she could or could not have alighted from the car could only go to the question of contributory negligence, a fact which plaintiff was under no obligation to show by his complaint, and as to which the burden of proof was upon appellant, and the allegation was immaterial. An unnecessary allegation in a complaint might disclose contributory negligence as a matter of law, but, as applied to this case, we cannot say as a matter of law that no other inference except contributory negligence could be drawn. Treating the allegation that she was unable to alight without peril as a conclusion as appellant insists, there is no allegation that enforces an inference of contributory negligence.
[4][5] It does not appear what the situation of the decedent was, or that she could have avoided the injury. She may have been so situated in the automobile that she could not alight, and the rule is that where the court can perceive that reasonable men might honestly differ in their conclusions, and the facts are of a character to be reasonably subject to more than one inference or conclusion as to whether negligence or contributory negligence exists, the question is one for the jury, and cannot be determined as one of law. Greenawaldt v. Lake Shore, etc., Co., 165 Ind. 219, 223, 74 N. E. 1081;Stoy v. Louisville, 160 Ind. 144, 66 N. E. 615;Pittsburgh, etc., Co. v. Browning, 34 Ind. App. 90, 71 N. E. 227; Cooley on Torts (2d Ed.) 805; 1 Shearman & Redfield on Negligence (4th Ed.).
[6] So, too, the concurring negligence of the driver of the car was not attributable to the decedent. Louisville, etc., Co. v. Creek, 130 Ind. 139, 143, 29 N. E. 481, 14 L. R. A. 733; City of Michigan City v. Boeckling, 122 Ind. 39, 42, 23 N. E. 518;Town of Knightstown v. Musgrove, 116 Ind. 121, 124, 18 N. E. 452, 9 Am. St. Rep. 827;Pittsburgh, etc., Co. v. Spencer, 98 Ind. 186;Town of Albion v. Hetrick, 90 Ind. 545, 46 Am. Rep. 230;Frank Bird, etc., Co. v. Krug, 30 Ind. App. 602, 610, 65 N. E. 309; 21 Am. & Eng. Encyc. of L. (2d Ed.) 495, 496.
[7] If a jury might or may infer negligence from the facts stated, the complaint is not bad on demurrer. Greenawaldt v. Lake Shore, etc., Co., supra.
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