Louisville & Southern Traction Company v. Montgomery

• Decision Date: 04 April 1917
• Docket Number: 22,937
• Citation: 115 N.E. 673,186 Ind. 384
• Parties: Louisville and Southern Traction Company v. Montgomery
• Court: Indiana Supreme Court

115 N.E. 673

186 Ind. 384

Louisville and Southern Traction Company v. Montgomery

No. 22,937

Supreme Court of Indiana

April 4, 1917

Rehearing Denied June 8, 1917.

From Clark Circuit Court; William Ridley, Judge.

Action by Beatrice Montgomery, by George D. Montgomery, her next friend, against the Louisville and Southern Traction Company. From a judgment for plaintiff, the defendant appeals. (Transferred from the Appellate Court under § 1405 Burns 1914, Acts 1901 p. 590.)

Affirmed.

George H. Voight, for appellant.

Alexander Dowling and Stotsenburg & Weathers, for appellee.

OPINION

Spencer, J.

The first question presented by this appeal arises out of the action of the trial court in overruling appellant's demurrer to the second paragraph of appellee's complaint on which the case was tried. It appears from that pleading, in substance, that on November 15, 1905, appellant was in possession of, and engaged in operating, an electric street railway system on and over certain of the public streets in the city of New Albany, including what is known as upper Eleventh street; that on said date appellee, a minor child, "was being carried and was traveling in a vehicle commonly called a 'surrey', drawn by one horse, driven by an experienced and competent driver, going northward on said street; that, at a point on said street near the intersection of the same with Ekin Avenue, another of the public streets of said city, said horse became frightened at some object and unmanageable, and backed said vehicle onto or so near said railroad track that a moving car could not pass it without coming in contact with said 'surrey'; that at the same time, one of the electric cars of the defendant, in charge of a motorman, was going northward on said track on said Eleventh Street, and, when said car was within a short distance of said vehicle, to-wit: twenty feet, said horse continued backing said vehicle toward and onto said track; that said motorman thereupon brought his car to a full stop, but, while said horse was still backing said vehicle, and while said vehicle was yet on said track, or so near thereto that said car could not pass without striking it, as said motorman might then and there have discovered by the exercise of ordinary care, said motorman carelessly and negligently turned on the electric current and started his car at such a rate of speed that he could not readily control or stop the same; and that, by reason of the carelessness and negligence of said motorman, and his inability to stop said car, it ran upon and against said vehicle," with resulting injury to appellee.

The allegation in the above pleading that the motorman "might then and there have discovered" appellee's perilous situation is attacked as being insufficient to charge that he saw or could have seen the position in which appellee was placed in time to have avoided the accident. We may concede that the grammarian recognizes a technical distinction in the correct use of the words "might" and "could," and that the failure to observe this distinction has, on occasion, been criticized in judicial decisions. Monroeville v. Weihl (1894), 6 Ohio Cir. Dec. 188, 196. On the other hand, it must be noted that the error is one of frequent occurrence with courts and text-writers alike, and that, at most, the difference between the two words is hardly potential enough to constitute legal irregularity sufficient to require the reversal of a judgment, particularly as applied to the situation presented in this case. Western R. Co. v. Young (1874), 51 Ga. 489, 493; Nelson v. Boston, etc., Min. Co. (1906), 35 Mont. 223, 227, 88 P. 785.

Nor are we impressed with the contention that the complaint fails to show that the motorman in question was in the service of appellant at the time of the accident and was then engaged in the line of his duty. It is true that some of the allegations contained in the pleading might readily have been framed in language more definite and certain, but the complaint as a whole is sufficient to allege that the motorman was rightfully in charge of appellant's car as its representative and that his negligence in starting said car, in the manner and under the circumstances set out, continued to the moment of collision and proximately resulted in appellee's injury. The demurrer was properly overruled. Louisville, etc., R. Co. v. Wood (1888), 113 Ind. 544, 570, 14 N.E. 572, 16 N.E. 197; Kahle v. Crown Oil Co. (1913), 180 Ind. 131, 138, 100 N.E. 681.

It appears from appellant's special bill of exceptions No. 4 that near the close of the third day of the trial, and at a time when the defense was about ready to rest its case, it developed that two of appellant's witnesses, although properly subpoenaed prior to the commencement of the trial and in attendance during the first two days, were then absent from the courtroom. Appellant objected to the introduction of...