Indianapolis Traction & Terminal Co. v. Smith

• Decision Date: 29 May 1906
• Docket Number: No. 5,736.,5,736.
• Court: Indiana Appellate Court
• Parties: INDIANAPOLIS TRACTION & TERMINAL CO. v. SMITH.

38 Ind.App. 160

77 N.E. 1140

INDIANAPOLIS TRACTION & TERMINAL CO.

v.SMITH.

No. 5,736.

Appellate Court of Indiana, Division No. 2.

May 29, 1906.

Appeal from Circuit Court, Morgan County; Jos. W. Williams, Judge.

Action by James Smith against the Indianapolis Traction & Terminal Company. From a judgment for plaintiff, defendant appeals. Affirmed.F. Winter, Oscar Matthews, and W. H. Latta, for appellant. George Young and Geo. W. Grubbs, for appellee.

WILEY, J.

Appellee recovered a judgment against appellant in the court below, for personal injury growing out of one of appellant's cars colliding with the wagon in which he was riding. Appellant relies for a reversal, as disclosed by its assignment of errors, upon the insufficiency of the complaint, and the overruling of its motion for a new trial. The complaint is in two paragraphs, and its sufficiency is questioned for the first time in this court.

Counsel for appellant had not made any objection to the sufficiency of the first paragraph of the complaint, but direct their argument against the second paragraph. Omitting the formal parts of the second paragraph it is charged that appellant owned and operated a line of street railway along and over Indiana avenue; that said avenue at the point where appellee was injured, was very narrow; that appellant had laid double tracks upon and over said street; that the avenue extends in a northwestern and southeastern direction; that on the southwestern side thereof there is a ditch running along the side of the street; that it is about 1 1/2 feet deep and 5 feet wide; that at the date, on January 15, 1904, said ditch was filled with ice, snow, sleet, and water, and was in a dangerous and unsafe condition, so that it was impossible for appellee to drive in, or near, to it with the wheels of his wagon; that there was not room enough for him to drive with the wagon between appellant's track, without getting so near to it as to obstruct the passage of a street car thereon; that at about nine o'clock p. m. of said day, appellee was driving in a southeastern direction on Indiana avenue, and on the right hand side of the street as he was driving, and between appellant's tracks and said ditch; that he was driving a heavily loaded wagon; that he was driving as near to the ditch as it was safe to drive, and the only place he could drive as he was going in said direction; that the space between appellant's track and the ditch was not sufficient for him to drive, and permit the cars to pass; that before he drove near to or on the tracks he stopped and looked for cars coming from the northwest on said tracks, but that he could not see any cars in sight; that he then drove in the aforesaid narrow place; that one of appellant's cars approached from a northwestern direction, traveling at a high and dangerous rate of speed, to wit: 30 miles per hour, and was running in the same direction that appellee was driving; that said car was in charge of a motorman and conductor who were agents of appellant; that the motorman could have seen appellee on appellant's tracks by the exercise of reasonable care. That if said motorman had kept a lookout at said time and place, he could have seen appellee in time to have stopped the car before running into his wagon; that there was nothing to obstruct the view of appellant's servants at said place, to prevent their seeing appellee driving on the tracks in time for the motorman to have stopped the car before injuring him. It is then charged that the servants in charge of the car did not give any warning of its approach; did not sound the gong or ring the bell; that appellant did not stop said car nor check its speed, to give appellee an opportunity to get off the track; that he could not have gotten off the track in time to avoid the injury, while the car was running at such a high and dangerous rate of speed; that appellant was grossly careless and negligent in running the car at such rate of speed, and in not sounding the gong or ringing the bell, as a warning to appellee, and in not stopping the car before running into him. It is further charged that appellant, by the exercise of reasonable care, could have stopped the car before colliding with appellee, and that appellant's servants knew, or ought to have known, that appellee could not get out of the way of said car at the rate of speed it was running. Further, that appellant's car in charge of the motorman and conductor, as aforesaid, “carelessly and negligently ran into plaintiff's wagon, *** destroying the same, throwing it into the ditch, and by reason of said collision, threw this plaintiff violently to the ground, etc.,” whereby he was injured.

While this paragraph is not a model pleading, as against an attack for the first time in this court, it will be upheld for two reasons: (1) In order that a complaint may be successfully attacked by an assignment of error on appeal, there must be total failure to allege some fact essential to the existence of a cause of action. Uncertainty or inadequacy of averment will not render a complaint bad when attacked for the first time on appeal. In the case of City of South Bend v. Turner, 156 Ind. 418, 60 N. E. 271, 54 L. R. A. 396, 83 Am. St. Rep. 200, it was said: “The total absence from the complaint of any averment of some fact or facts essential to the existence of the cause of action, or the presence of some averment that absolutely destroys the plaintiff's right of recovery, may be for the first time raised in this court by an independent assignment of errors under section 346 of the Code (section 346, Burns' Ann. St. 1894), *** but mere uncertainty or inadequacy of averment, such as might have been amended and cured upon motion seasonably made, will be deemed to have been waived by a defendant who proceeds with the trial to final judgment without objection, and who brings his complaint for the first time, after the cause of action has been strengthened by the verdict of a jury, and the presumptions indulged in favor of the decision of the trial court upon motions for judgment for a new trial.” See, also, Peoria, etc., R. R. Co. v. Attica, etc., Co., 154 Ind. 218, 56 N. E. 210;Town of Knightstown v. Homer (Ind. App.) 75 N. E. 13;Efroymson v. Smith, 29 Ind. App. 451, 63 N. E. 328; Cleveland, etc., R. R. Co. v. Baker, 24 Ind. App. 152, 54 N. E. 814;Brandis v. Grissom, 26 Ind. App. 661, 60 N. E. 455.

2. When the sufficiency of a complaint is tested for the first time on appeal, by an assignment of error, it will be held sufficient if it contains facts enough to bar another action. Harris et. al. v. State ex rel. Wright, 123 Ind. 277, 24 N. E. 241;Peters et al. v. Banta, 120 Ind. 416, 22 N. E. 95; Town of Knightstown v. Homer, supra, and cases there cited. It is the duty of a street railway company, in the operation of its cars, when it sees a person in peril, from which he cannot extricate himself, to act so as not to increase such danger, and when it fails to exercise that degree of care required of it, and such failure results in injury, it becomes liable for resulting damages. Lake Erie, etc., R. R. Co. v. Juday, 19 Ind. App. 436, 49 N. E. 843. In the case just cited this court said: “It is sound doctrine strongly entrenched by the authorities, that when one person sees another in danger or peril, from which he is unable to extricate himself with reasonable care and prudence, it is the highest duty of such person so to act as not to increase the peril, and if he does act in a manner to increase the danger, with the full knowledge of the facts, it is negligence for which he may be required to respond in damages.” A number of authorities in support of this rule are there cited, to which we refer without comment.

In this second paragraph of complaint it is directly averred that appellant's servants in charge of and operating the car, could, by the exercise of reasonable care, have discovered appellee's peril in time to have avoided injuring him. It is clear to us that there is not a total failure to allege some fact or facts essential to the existence of appellee's cause of action, and that the facts alleged are amply sufficient to bar another action. Applying these rules, and upon the authorities cited, the paragraph is sufficient as against an attack for the first time in this court. In its motion for a new trial appellant has assigned 29 reasons in support of it. We will consider only such as have been discussed,...