Indiana Union Traction Co. v. Reynolds

• Decision Date: 29 June 1911
• Docket Number: 21,869
• Parties: Indiana Union Traction Company v. Reynolds
• Court: Indiana Supreme Court

95 N.E. 584

176 Ind. 263

Indiana Union Traction Company v. Reynolds

No. 21,869

Supreme Court of Indiana

June 29, 1911

From Grant Superior Court; P. H. Elliott, Judge.

Action by John W. Reynolds against the Indiana Union Traction Company. From a judgment on a verdict for the plaintiff for $ 500, defendant appeals. Transferred from Appellate Court under § 1405 Burns 1908, Acts 1901 p. 590.

Reversed.

J. A Van Osdol, Kittinger & Diven and Carroll & Dean, for appellant.

Williams & Clawson and Todd & Rauch, for appellee.

OPINION

Cox, J.

Appellee sued appellant for personal injuries alleged to have been received by reason of appellant's negligence in running one of its cars against the wagon appellee was driving across appellant's tracks at a street crossing in the city of Marion, Indiana. The complaint was in two paragraphs, and demurrers were overruled to each of them.

From a judgment on a verdict for appellee this appeal is prosecuted by appellant.

It is first contended that the trial court erred in overruling appellant's demurrer to the first paragraph of the complaint. The particular defect of the complaint does not require that the pleading shall be set out in full, but the following part of it will disclose the basis of appellant's contention. After alleging the facts and circumstances of appellant's alleged negligence, the complaint concludes, "that on account of said negligence said plaintiff was injured, in that he was thrown from said wagon, in which he was riding, upon said street, thereby receiving permanent injuries of the shoulder, spinal column and back; that said injuries have caused said plaintiff to be confined to his bed a great part of the time since said accident, and have left said plaintiff in such a condition that he is unable to dress himself; that at the time of said injury said plaintiff was earning, and when in good health did earn $ 5 a day; that his wagon was damaged in the sum of $ 20; that he has suffered great mental and physical pain on account of said injuries, and that he has been injured in the sum of $ 5,000."

The specific and only objection to the sufficiency of this paragraph of the complaint is that it contains no allegation that appellee was free from contributory negligence. It is urged that as it contains a statement that appellee's wagon was damaged in a sum stated, it is a complaint for injuries to property, and that as the act of 1899 (Acts 1899 p. 58, § 362 Burns 1908), placing the burden of proving contributory negligence on a defendant, does not change the rule of pleading in negligence cases when the injury is to property, this paragraph is bad without such allegation of appellee's freedom from contributory negligence.

It is clearly apparent that this paragraph of complaint seeks to recover for injuries to the person of appellee alone, and not for injuries to his wagon. It nowhere alleges, by any direct allegation, that the wagon was injured by the acts of negligence averred, but only the disconnected statement is made, "that his wagon was damaged in the sum of $ 20." No damages are asked for this loss, but, on the contrary, it is alleged that appellee sustained injuries in the sum of $ 5,000, and for that sum judgment is asked. The statement quoted from the complaint of damages to the wagon, is mere surplusage. Moreover the record shows that the appellee was not seeking a recovery for damages done to his wagon, and that the trial proceeded on the theory that a recovery was sought for personal injuries alone. The court's instruction, defining the measure of damages, included only injuries to appellee's person. The court did not err in overruling the demurrer to this first...