Kinmore v. Cresse

• Decision Date: 25 June 1913
• Docket Number: No. 7,957.,7,957.
• Citation: 102 N.E. 403,53 Ind.App. 693
• Parties: KINMORE v. CRESSE.
• Court: Indiana Appellate Court

53 Ind.App. 693

102 N.E. 403

KINMORE

v.CRESSE.

No. 7,957.

Appellate Court of Indiana, Division No. 1.

June 25, 1913.

Appeal from Circuit Court, White County; James P. Wason, Judge.

Suit by Melissa E. Cresse against Thomas Kinmore. From a judgment for plaintiff, defendant appeals. Affirmed.

Palmer & Carr, of Monticello, for appellant. Addison K. Sills, Jr., of Monticello, for appellee.

FELT, J.

Suit by appellee against appellant to recover damages for injuries sustained by being struck by an automobile owned and operated by appellant. The complaint was in one paragraph. Appellant's demurrer thereto was overruled, as was also his motion to make more specific. Answer in general denial. Trial by jury, finding and verdict for appellee. Appellant's motion in arrest of judgment was overruled. Judgment rendered on the verdict. Appellant's motion for a new trial was also overruled. Appellant assigns as error the overruling (1) of his demurrer to the complaint; (2) his motion to make more specific; (3) his motion in arrest of judgment; (4) his motion for a new trial.

In substance, the complaint alleges that appellee in August, 1909, was traveling in a buggy drawn by a horse, driven by her uncle, Enos Nice, upon a public highway running east and west in Princeton township, White county, Ind.; that while so traveling she saw appellant and another gentleman coming behind them in an automobile, and traveling in the same direction; that when the automobile was about 300 or 400 feet distant appellee requested Nice to stop the horse that she might get out of the buggy, which he did, stopping on the south side of the highway; that while in the act of getting out of the buggy appellee signaled appellant to stop the automobile, which was running at a very low rate of speed, and was then about 200 feet away; that appellee started across the highway immediately, and had crossed it, and was standing off at the north side, and off of the traveled part of the highway, when appellant, who was then in possession and control of the same, carelessly, negligently, and recklessly, in a manner unknown to appellee, ran said automobile toward and against her, thereby knocking her down and injuring her.

It is urged that the complaint is insufficient because it does not directly allege any acts or omissions on the part of appellant constituting negligence; that the facts averred leave an inference of contributory negligence on appellee's part, as the complaint discloses that she left the buggy (a place of safety) without necessity, and moved across the highway to a place of danger.

[1] The complaint is not subject to the criticism of raising an inference of contributory negligence on the part of appellee. True, it is averred she got out of the buggy, but it is also charged that she had crossed the highway and was standing at the side thereof when struck by the automobile. For this reason the rule announced in Baltimore, etc., R. Co. v. Abegglon, 41 Ind. App. 603-606, 84 N. E. 566, even if correct, has no application here. It has been uniformly held in this state that a general allegation of negligence is sufficient to withstand a demurrer for want of facts, unless the contrary appears from the specific facts averred. The complaint in this case shows that appellant owed a duty to appellee and contains a general charge of the negligent failure to discharge that duty which resulted in the injury of which the plaintiff complains. This is sufficient to withstand the demurrer. Cleveland, etc., R. Co. v. Clark, 97 N. E. 822;Louisville, etc., R. Co. v. Bates, 146 Ind. 564-566, 45 N. E. 108; Rodgers v. B. & O., etc., R. Co., 150 Ind. 397-403, 49 N. E. 453.

[2] It is next insisted that the court erred in overruling appellee's motion to make the “complaint more specific so as to show how and in what manner the defendant ran and operated the automobile,” and “in what the alleged carelessness and negligence of the defendant consisted in the use of said automobile *** by reason of which the plaintiff was injured.” In Pittsburgh, etc., R. Co. v. Simons, 168 Ind. 333, on page 339, 79 N. E. 911, on page 913, our Supreme Court said: “It has often been held by this court that a general charge of negligence is sufficient as against a demurrer; but, if a defendant desires a more specific charge, he is entitled to it upon motion, if made in due season. But the rule has its limitations. A plaintiff is required to charge his cause of action in direct and certain terms, yet he is not required to go into an elaboration of details beyond what is reasonably necessary fully and distinctly to inform the defendant of what he is called upon to meet. Alleman v. Wheeler (1885) 141. ...