Indiana Union Traction Company v. Love

• Decision Date: 26 November 1912
• Docket Number: 22,116
• Citation: 99 N.E. 1005,180 Ind. 442
• Parties: Indiana Union Traction Company v. Love, Administrator
• Court: Indiana Supreme Court

99 N.E. 1005

180 Ind. 442

Indiana Union Traction Company v. Love, Administrator

No. 22,116

Supreme Court of Indiana

November 26, 1912

Rehearing Denied November 19, 1913.

From Boone Circuit Court; Willett H. Parr, Judge.

Action by Thomas W. Love, administrator of the estate of Maria Love deceased, against the Indiana Union Traction Company. From a judgment for plaintiff, the defendant appeals. (Transferred from the Appellate Court under § 1405 Burns 1908, Acts 1901 p. 590.)

Affirmed.

James A. Van Osdol, Joseph R. Morgan, Louis B. Ewbank, W. A Kittinger and Samuel M. Ralston, for appellant.

Wilson S. Doan, Charles J. Orbison and A. J. Shelby, for appellee.

OPINION

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 June 11, 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 38th Street, a much traveled and principal thoroughfare within the corporate limits of the city of Indianapolis, Indiana; that Maria Love as they approached the crossing of the tracks of appellant over said 38th 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 an 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 38th 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 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 Maria 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 38th Street, as aforesaid, at a high and dangerous rate of speed, to wit: thirty miles per hour; that defendant was negligently failing to observe said crossing; that defendant carelessly and negligently run 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 Maria Love about 50 feet, 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 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.

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. Pittsburgh, etc., R. Co. v. Schepman (1908), 171 Ind. 71, 76, 84 N.E. 988; Pittsburgh, etc., R. Co. v. Peck (1905), 165 Ind. 537, 76 N.E. 163; State, ex rel. v. Casteel (1886), 110 Ind. 174, 187, 11 N.E. 219; Palmer v. Logansport Gravel Road Co. (1886), 108 Ind. 137, 142, 8 N.E. 905; Indianapolis Trac., etc., Co. v. Pressell (1907), 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 at which the car in which she was riding is not shown, nor her situation, nor the reason she could not have alighted in safety. 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.

It does not appear what the situation of 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 can not be determined as one of law. Greenawaldt v. Lake Shore, etc., R. Co. (1905), 165 Ind. 219, 223, 74 N.E. 1081; Stoy v. Louisville, etc., R. Co. (1903), 160 Ind. 144, 66 N.E. 615; Pittsburgh, etc., R. Co. v. Browning (1904), 34 Ind.App. 90, 71 N.E. 227; Cooley, Torts (2d ed.) 805; 1 Shearman & Redfield, Negligence (4th ed.) § 54. So, too, the concurring negligence of the driver of the car was not attributable to the decedent. Louisville, etc., R. Co. v. Creek (1881), 130 Ind. 139, 143, 29 N.E. 481, 14 L. R. A. 733; City of Michigan City v. Boeckling (1899), 122 Ind. 39, 42, 23 N.E. 518; Town of Knightstown v. Musgrove (1888), 116 Ind. 121, 124, 18 N.E. 452, 9 Am. St. 827; Pittsburgh, etc., R. Co. v. Spencer (1884), 98 Ind. 186; Town of Albion v. Hetrick (1883), 90 Ind. 545, 46 Am. Rep. 230; Frank Bird Transfer Co. v. Krug (1903), 30 Ind.App. 602, 610, 65 N.E. 309; 21 Am. and Eng. Ency. Law (2d ed.) 495, 496. If a jury may infer negligence from the facts stated, the complaint is not bad on demurrer. Greenawaldt v. Lake Shore, etc., R. Co., supra.

The serious question is presented by the insistence that the complaint does not show that any negligence of appellant was the proximate cause of the injury. The claim is made that under the allegations of the complaint the automobile had stopped beside the track, and was started and run upon the tracks, and plaintiff's decedent saw the coming car and remained in the automobile just as it was started, when it went upon said tracks, upon the theory, (a) that in the absence of a statute, or ordinance, it is not necessarily negligent to run a car thirty miles an hour, (b) that the speed of the car and failing to sound the gong did not cause the collision when the automobile had already stopped; (c) that the allegation of negligence in approaching the crossing at high speed without sounding the gong does not show liability, and (d) that the allegation that the injury was caused "proximately by the negligence of defendant as aforesaid," can not supply the omission of facts showing it to have been so caused, and reliance is placed on Lake Shore, etc., R. Co. v. Barnes (1906), 166 Ind. 7, 76 N.E. 629, 3 L. R. A. (N. S.) 778; Moran v. Leslie (1904), 33 Ind.App. 80, 70 N.E. 162; and Lake Erie, etc., R. Co. v. Moore (1908), 42 Ind.App. 32, 81 N.E. 85, 84 N.E. 506, respectively, as to those respective propositions.

It is alleged "that said Mrs. Love as they approached the crossing of said interurban railroad tracks and said 38th Street looked and listened for an approaching car and that she did not see or hear any approaching car upon said tracks until just before said Heimes went upon said track, and that she, with the other guests in said automobile, called him to stop the same, but that he continued to go upon said tracks." Then follow allegations as to obstructions in the form of a house and signboards, and by a car on appellant's tracks going north, and then follow the allegations that "when said car had passed to the...