Indianapolis Street Railway Company v. Seerley

• Decision Date: 28 October 1904
• Docket Number: 5,030
• Citation: 72 N.E. 169,35 Ind.App. 467
• Parties: INDIANAPOLIS STREET RAILWAY COMPANY v. SEERLEY
• Court: Indiana Appellate Court

72 N.E. 169

35 Ind.App. 467

INDIANAPOLIS STREET RAILWAY COMPANY v. SEERLEY

No. 5,030

Court of Appeals of Indiana

October 28, 1904

Rehearing denied January 11, 1905, Reported at: 35 Ind.App 467 at 477. Transfer denied May 12, 1905.

From Shelby Circuit Court; Douglas Morris, Judge.

Action by Joseph Seerley against the Indianapolis Street Railway Company. From a judgment on a verdict for plaintiff for $ 3,500, defendant appeals.

Affirmed.

F Winter, Hord & Adams and W. H. Latta, for appellant.

Wymond J. Beckett, for appellee.

OPINION

COMSTOCK, J.

This action was brought to recover for personal injuries, and was begun by the filing of a complaint against the appellant in the Superior Court of Marion County. The damages alleged to have been sustained were suffered on account of injuries to appellee's wife, thereby depriving him of her services. The accident happened on the 9th day of May, 1900. A buggy driven by appellee, in which he and his wife were riding, collided with a street car on Massachusetts avenue, in the city of Indianapolis.

The complaint upon which the case was tried was an amended complaint, filed after the case had been venued to Shelby county. The allegations are as follows: "That on or about May 9, 1900, defendant was operating one of its electric cars over and upon Massachusetts avenue, a public highway of the city of Indianapolis, Indiana, and said car was in charge of and controlled by defendant's servants and employes, and acting in the line of their employment at the time of the accident to this plaintiff, hereinafter described; that said car was running southwest on the north track of defendant's double line of railway in said Massachusetts avenue, and said plaintiff was riding in a one-horse vehicle with his wife, Ruth Seerley, also southwest in and upon said Massachusetts avenue, and north of said defendant's said north track, in the roadway of said avenue; that about half way between the points where East and Liberty streets intersect said avenue the horse drawing the vehicle in which this plaintiff and his said wife were riding shied to the south, and ran upon said north track of defendant's said railway, all without fault or negligence of this plaintiff or his said wife; that when said horse drew said vehicle upon said north track as aforesaid, and while said vehicle was upon said track, and before this plaintiff could remove said horse and vehicle from said track in the exercise of due care, defendant's servants and agents in charge of and controlling and operating said car negligently approached with said car this plaintiff's said horse and vehicle upon the same said track, and negligently ran said car against said vehicle and horse upon said track, and negligently collided with, struck and crushed said vehicle, and negligently threw and hurled this plaintiff's wife from and out of said vehicle with great force and violence upon the hard street and stones, and negligently injured the plaintiff's said wife, without fault or negligence on her part or negligence on the part of the plaintiff; that when this plaintiff's horse shied and ran upon the track of this defendant as aforesaid, and at all times while said vehicle and horse were upon said track, they were in plain view of defendant's motorman in charge of said car, and said motorman could and did see plaintiff's said horse upon said track; and after said horse and vehicle came upon said track as aforesaid said motorman could have stopped said car, in the exercise of due care, before striking said vehicle, but negligently failed to do so, and negligently ran said car against said vehicle, and thereby negligently injured said plaintiff's wife."

A demurrer to this complaint was filed upon four grounds: (1) That it did not state facts sufficient to constitute a cause of action; (2) that the court had no jurisdiction of the person of the defendant; (3) that the court had no jurisdiction of the subject-matter; (4) that there was another action pending between plaintiff and defendant for the same cause of action. The demurrer was overruled, and the defendant filed an answer in general denial.

The amended complaint on which the case was tried was filed in the Shelby Circuit Court on the 7th day of November, 1902, being the twenty-ninth judicial day of the October term of said court. On the 22d day of December, 1902, which was the first judicial day of the December term of said Shelby Circuit Court, the defendant entered a special appearance, and filed its written motion to remand the cause to the Superior Court of Marion County, for the reasons stated in said motion, as follows: "(1) That on the 23d day of May, 1902, being the seventeenth judicial day of the special term of said court, the plaintiff filed his affidavit for a change of venue in this cause, and said motion was sustained, and said cause was sent to the Shelby Circuit Court, but the transcript in said cause was not filed in the Shelby Circuit Court until the 7th day of October, 1902, and said change of venue was not perfected within the time limited by the court. (2) That on the 23d day of May, 1902, the plaintiff filed his motion in the Superior Court of Marion County, where this cause was then pending, for a change of venue from said Marion county, which motion was, by the court, sustained, and the venue of said cause was changed to the Shelby Circuit Court, and twenty days were given plaintiff within which to perfect said change; and afterwards, on the 13th day of June, 1902, being the eleventh judicial day of the June term of said court, the plaintiff voluntarily appeared in said court after the time limited for perfecting said change, and appeared in said action, and filed his substituted complaint therein."

The motion was overruled and exception taken. The trial resulted in a verdict and judgment for $ 3,500 in favor of appellee. The jury returned with the general verdict answers to interrogatories.

The errors relied upon in this court arise upon the rulings, respectively, of the court on the demurrer to the amended complaint, on the motion to remand, on the motion for judgment on the special answers to interrogatories, and on the motion for a new trial.

1. The action of the court in refusing to remand is presented only by a separate specification of error. It should have been made a reason for a new trial. Sidener v. Davis (1882), 87 Ind. 342; Bogue v. Murphy (1902), 29 Ind.App. 292, 61 N.E. 957; Citizens St. R. Co. v. Shepherd (1902), 29 Ind.App. 412, 62 N.E. 300.

2. It is not claimed that the complaint does not state a cause of action, but that the demurrer should have been sustained because the trial court had no jurisdiction to try the cause. Demurrer for this cause will only lie when the defect appears upon the face of the complaint. It does not so appear. The demurrer was therefore properly overruled. Eel River R. Co. v. State, ex rel. (1896), 143 Ind. 231, 42 N.E. 617.

3. Appellant complains of the fifth and seventh instructions given to the jury. The fifth is as follows: "The law interprets care to be that degree of care which a person of ordinary prudence, under the particular circumstances, is presumed to exercise to avoid injury. Such care is required to be in proportion to the danger to be avoided and the fatal consequences that might result from the neglect." Against this instruction it is said that the jury had no right to consider the fatal consequences which might result from the neglect of any act. If care is to be exercised in proportion to the danger to be avoided--as has many times been held--there can be no error in the concluding part of the sentence, "and the fatal consequences that might result from the neglect." Ordinary care is defined in the above language in the following opinions: Toledo, etc., R. Co. v. Goddard (1865), 25 Ind. 185; Louisville, etc., R. Co. v. Schmidt (1897), 147 Ind. 638, 46 N.E. 344; Illinois Cent. R. Co. v. Cheek (1899), 152 Ind. 663, 53 N.E. 641.

4. Said seventh instruction is as follows: "The law casts upon persons in charge of a street car the duty of vigilance in observing the tracks ahead of their cars and of avoiding danger by collision with persons on the track; and to avoid inflicting injury to a person upon the track in a dangerous position the car must be stopped, if there is time so to stop it, in the exercise of ordinary care, after the danger is observed, or should have been observed in the exercise of ordinary care. And in this case, if you shall find that there was time, in the exercise of ordinary care, for the motorman to have stopped the car after seeing, or after he was bound to see, in the exercise of ordinary care, the dangerous position of the plaintiff's wife upon the track ahead of the car, if you find she was in said position, and that he failed to exercise such care to check the speed of the car, but ran the car against said vehicle in which the plaintiff's wife was riding, and injured her as alleged in the complaint, then you are at liberty to find that the defendant was guilty of negligence in the premises."

The objection made to this instruction is that it attempts to state the theory of the "last clear chance," and that under the decisions of this State the peril must be actually known to the motorman before he can be held negligent upon that theory; citing Cleveland, etc., R Co. v. Klee (1900), 154 Ind. 430, 56 N.E. 234; Dull v. Cleveland, etc., R. Co. (1899), 21 Ind.App. 571, 52 N.E. 1013; Krenzer v. Pittsburgh, etc., R. Co. (1898), 151 Ind. 587, 68 Am. St. 252, 43 N.E. 649; Louisville, etc., R. Co. v. East Tenn., etc., R....