Indianapolis & N.W. Traction Co. v. Henderson

• Decision Date: 31 December 1906
• Docket Number: No. 5,820.,5,820.
• Citation: 79 N.E. 539,39 Ind.App. 324
• Court: Indiana Appellate Court
• Parties: INDIANAPOLIS & N. W. TRACTION CO. v. HENDERSON.

39 Ind.App. 324

79 N.E. 539

INDIANAPOLIS & N. W. TRACTION CO.

v.HENDERSON.

No. 5,820.

Appellate Court of Indiana, Division No. 1.

Dec. 31, 1906.

Appeal from Superior Court, Tippecanoe County; H. H. Vinton, Judge.

Action by Charles H. Henderson against the Indianapolis & Northwestern Traction Company. From a judgment for plaintiff, defendant appeals. Affirmed.Pierre Gray, for appellant. Thompson & Cunningham, for appellee.

MYERS, C. J.

Appellee begun this action against appellant to recover damages for injuries to his horse and buggy as a result of a collision of the horse with one of its cars. The complaint on which the cause was tried is in two paragraphs. The first exhibited a state of facts in substance showing that on July 14, 1904, appellee was the owner of a horse, averred to be gentle and city broke; that while driving said horse, hitched to a buggy, along Dayton street, in the city of Lafayette, and about 150 to 250 feet distant, and directly in front of one of appellant's approaching electric cars, said horse became frightened and beyond appellee's control; that he was then and there on or near the railroad track on which said car was being operated, and in a perilous situation; that he was at the time in plain view of the motorman in charge of the car, and who saw him, or by the exercise of due care and diligence could have seen him, in time to have stopped the car, and knowing that unless the car was stopped the same would come in contact with and run against said horse. But appellant, in disregard of its duty to stop the car and thereby avoid the injury complained of, by its agents and servants in charge of said car, and while engaged in the line of their employment, and without any fault or negligence of appellee, carelessly and negligently ran said car on and against appellee's horse and buggy, knocking the horse down and breaking the buggy, describing the injuries thereby caused to each, to appellee's damage in the sum of $350. The second paragraph contains all the facts averred in the first, but in greater detail, except that it omits to aver that appellant's said servants at the time of the injury were then engaged in the line of their employment; but it does aver that “said defendant company, through its agents and representatives in charge of said electric interurban car, could by the exercise of due care and diligence have stopped said car before striking and coming in contact with said horse and buggy, but, on the contrary, said defendant company, disregarding its duties in that respect, carelessly and negligently ran said car against said horse,” etc. A demurrer to each paragraph for want of facts was overruled. Answer in denial. Trial by jury, and verdict for appellee in the sum of $150. Motion for a new trial overruled, and judgment on the verdict. The errors here assigned, and not waived, question the ruling of the court (1) in overruling the demurrer to each paragraph of the complaint and (2) the overruling of appellant's motion for a new trial.

1. Appellant insists that each paragraph of the complaint is insufficient, for the reasons (1) that its material averments are in the alternative, and not direct and certain, and (2) that the negligent acts are not charged as having been committed by it. The material averments of these paragraphs, in so far as they are affected by the questions presented on demurrer, are practically the same. Therefore, to single out the averments about which there is contention, we have the following: (a) “That in entering the city of Lafayette said company's track, or the track used by said defendant company for that purpose, does not *** lay and extend along *** Dayton avenue,” a public street in said city, and along which defendant operates its cars; (b) that “plaintiff's said animal shied to the south and ran upon the track of said defendant company, or near to said track”; (c) “that at the time said animal shied and ran upon the track of said defendant company, as aforesaid, and while said animal remained upon or near to said track, as aforesaid, said horse and buggy were immediately in front of said approaching electric car, and in plain view of the motorman in charge of said car, and that said motorman could and did see plaintiff's said horse upon said track, or by the exercise of due care and diligence could have seen said animal.” The rule is elementary requiring a party to state his cause of action by direct averments, and not by averments in the alternative. The purpose of the rule is to require certainty in pleadings (1 Chitty, Pleading, *236, *237; Wheeler v. Thayer, 121 Ind. 64, 67, 22 N. E. 972); but, unless the alternative averments are such as to vitiate the complaint, it will not be held bad on demurrer-the remedy, as a rule, being a motion to make more specific. In this jurisdiction a complaint is to be construed as a whole, and if it contains facts enough, directly stated, to authorize any relief, it will withstand a demurrer for want of facts. Scott v. Cleveland, etc., Ry. Co., 144 Ind. 125, 128, 43 N. E. 133, 32 L. R. A. 154;United States, etc., Invest. Co. v. Harris, 142 Ind. 226, 40 N. E. 1072, 41 N E. 451;Gowdy Gas, etc., Water Co. v. Patterson, 29 Ind. App. 261, 64 N. E. 485. After an examination of the complaint now before us, we are of the opinion that the alleged alternative averments are not such as will vitiate the complaint, but, on the contrary, it will be seen that in each instance they refer to the same ultimate fact, each of them being pertinent to the single cause of action. The complaint is not subject to the criticism urged against it. Hasberg v. Moses, 81 App. Div. 199, 80 N. Y. Supp. 867;Floyd v. Patterson, 72 Tex. 202, 10 S. W. 526, 13 Am. St. Rep. 787;Continental Tobacco Co. v. Campbell, 76 S. W. 125, 25 Ky. Law Rep. 569. See, also, Kalen v. Terre Haute, etc., R. Co., 18 Ind. App. 202, 204, 47 N. E. 694, 63 Am. St. Rep. 343; note to Munn v. Cook, 24 Abb. N. C. 314, 8 N. Y. Supp. 698;Mullin v. California Horseshow Co., 105 Cal. 77, 83, 38 Pac. 535; 6 Thompson, Com. Neg. § 7451.

There is no merit in the second objection urged against the complaint, as will be seen from a synopsis of the complaint set out in this opinion. The demurrer was properly overruled.

2. Appellant assigns various reasons in support of its motion for a new trial. Considering these reasons in the order argued, it is first insisted that the jury were erroneously instructed as to the law of the case. Upon an examination of the instructions challenged by appellant, we find that by instruction No. 2 the court, in stating the contents of the complaint, included facts additional to those therein found. By the fifth instruction the jury were told that, in order for plaintiff to recover in this action, it would be necessary for him to prove by the weight or preponderance of the evidence every material averment of his complaint. This being a civil action, the jury were bound to take the law as given by the court, and it was the duty of the court to correctly state the issues. Nickey v. Dougan, 34 Ind. App. 601, 610, 73 N. E. 288;Kimble v. Seal, 92 Ind. 276, 284. Grant that by instruction No. 2 appellee was made to assume the burden of proving unnecessary facts precedent to his right to recover...