Roberts v. Terre Haute Elec. Co.

• Decision Date: 05 December 1905
• Docket Number: No. 5,558.,5,558.
• Citation: 76 N.E. 323,37 Ind.App. 664
• Parties: ROBERTS v. TERRE HAUTE ELECTRIC CO.
• Court: Indiana Appellate Court

37 Ind.App. 664

76 N.E. 323

ROBERTS

v.TERRE HAUTE ELECTRIC CO.

No. 5,558.^*

Appellate Court of Indiana, Division No. 2.

Dec. 5, 1905.

Appeal from Superior Court, Vigo County; O. B. Harris, Special Judge.

Action by Henry Roberts, by his guardian ad litem, against the Terre Haute Electric Company. From a judgment for defendant, plaintiff appeals. Reversed.

Stimson & Condit, J. O. Piety, and F. S. Rawley, for appellant. McNutt & McNutt, for appellee.

COMSTOCK, J.

Appellant sued appellee to recover damages for personal injuries inflicted upon his ward by the alleged negligence of the appellee. The complaint is in one paragraph. It alleges, among other matters, substantially the following facts: That the appellee owns and operates an electric interurban street railway, having its main line on Wabash avenue, and a branch running north on Ninth street, in the city of Terre Haute; that said branch connects with the main line by a westward curve into Wabash avenue. That for the purpose of carrying property it runs freight cars over said railway, some of which are motor cars, others nonmotor cars, which are propelled and controlled by coupling them to motor cars; that it is highly dangerous to people using said street for trains and street cars to run on said street without a motor car at the front end of the train and a motorman to control said cars at the front of the car, in a position where he can see the tracks, the street, and the people in the street in front of said train; that while a party of citizens was passing and a crowd of spectators filled the street at that point, among whom was the appellant's ward, the appellee negligently backed a freight train consisting of two cars, the rear a nonmotor car, round said curve from Ninth street, into Wabash avenue, and in so doing knocked said ward down, ran said motor over him, passing the wheels over his left arm and over three fingers of his right hand, mangling and crushing them so that it was necessary to amputate the left arm above the elbow and the three injured fingers; that appellee negligently failed to have any person on said motor car while backing it as aforesaid, and negligently placed the motorman who backed said train, where it was not possible for him to see the track, or the street, or the people in front of said backing train, and negligently failed to place a lookout on said train in a place where he could see the track, or the street, or the people in front of said backing train; and that by reason of the appellee's negligent acts aforesaid said ward received said injuries. Appellee answered by general denial. The issues were submitted to a jury for trial, and at the conclusion of appellant's evidence in chief, appellee moved the court to direct the jury to return a verdict for the appellee, which motion the court sustained, and instructed the jury to find for the appellee. The jury returned a verdict as directed by the court, and the court rendered judgment thereon in favor of appellee that the appellant take nothing by the action, and that appellee recover its costs. The errors assigned are, first, that the court erred in sustaining appellee's motion to strike out parts of the complaint; second, that the court erred in overruling appellant's motion for a new trial.

The following are the parts of the complaint stricken out, which is made the first error: (1) “Said interurban railway connects with an electric street railway in said city of Terre Haute, owned and rightfully operated by the defendant, as a common carrier for passengers only, and over which the defendant has no right to run freight cars or carry property.” (2) “On the 8th day of October, 1901, the defendant was unlawfully running a train of its said interurban freight cars, and unlawfully carrying property thereon, over its said street railway within the city of Terre Haute, without first getting the consent of the proper authorities of said city to operate said railway within said city for the purpose of carrying property or running freight cars over said railway.” Appellant argues that the using of the interurban freight cars and the carrying of freight thereon over the lines of interurban street railway, without the consent of the proper city authorities, is a wrong done to the general public; and that a wrong done to the general public, that results in a special injury to a particular citizen, gives to the injured party a good cause of action for damages. Text writers and decisions are cited in support of this claim. The appellee was authorized to run interurban freight cars over its tracks by Acts 1901, p. 461 (section 5468a, subds. 6, 8, Burns' Ann. St. 1901). Under said act street railway companies desiring to construct or having constructed any interurban street railway,...