South Chicago City Ry. Co. v. Zerler

• Citation: 31 Ind.App. 488,65 N.E. 599
• Parties: SOUTH CHICAGO CITY RY. CO. v. ZERLER.
• Decision Date: 10 December 1902
• Court: Court of Appeals of Indiana

31 Ind.App. 488

65 N.E. 599

SOUTH CHICAGO CITY RY. CO.

v.ZERLER.¹

Appellate Court of Indiana, Division No. 2.

Dec. 10, 1902.

Appeal from superior court, La Porte county; H. B. Tuthill, Judge.

Action by Charles Zerler, Sr., against the South Chicago City Railway Company. Judgment for plaintiff. Defendant appeals. Affirmed.

Peter Crumpacker, for appellant. A. F. Knotts and James F. Gallaher, for appellee.

ROBINSON, J.

The complaint avers that appellee's wife was a passenger on one of appellant's cars, and desired to alight at a regular stopping place, which fact was known to appellant's servants in charge of the car; “that just as said Wilhelmina Zerler, plaintiff's wife, was attempting to alight, and before she was enabled to do so, the said defendant, by and through its agents and officials and employés, without any fault or carelessness on the part of the plaintiff or his said wife, carelessly and negligently started said car with a quick and rapid jerk and movement of said car; that said Wilhelmina Zerler, this plaintiff's wife, was then and there, without any fault or carelessness or negligence on her part or on the part of the plaintiff, and through the carelessness and negligence and fault of the defendant, its agents and employés, in and by reason of said careless and negligent starting, with a quick and sudden jerk, its said car, then and there threw the said Wilhelmina Zerler, plaintiff's wife, from its said car violently to the ground and street, and then and there, carelessly and negligently, and without any fault or carelessness or negligence on the part of the plaintiff or on the part of his said wife, Wilhelmina Zerler, threw, thrust, and propelled the said Wilhelmina Zerler, plaintiff's wife, from its said car to the ground as aforesaid, and then and there, carelessly and negligently, and without any fault or carelessness or negligence on the part of the plaintiff or his said wife,” injured her. Appellant has assigned, as errors, overruling the demurrer to the complaint, and overruling the motion for a new trial.

It is quite true that the facts stated in a complaint must be stated with certainty, and in an action for negligence the negligent act must be stated in such terms as show it to have been the efficient cause of the injury complained of. While the selection of the terms used in the complaint might be open to some objection, yet, applying the general rule that a pleading must be taken as a whole, and construed according to its general scope and tenor, we think it sufficiently appears that the appellant is charged with having carelessly and negligently started its car with a sudden jerk while the passenger was alighting from the car, which threw her to the ground and injured her. The charge is made in general terms, but, if it desired to have the charge made more specific, a motion to that effect should have been made. Railroad Co. v. Jones, 108 Ind. 551, 9 N. E. 476;Byard v. Harkrider, 108 Ind. 376, 9 N. E. 294; Railroad Co. v. Kitley, 118 Ind. 152, 20 N. E. 727.

It is also argued that error was committed by the trial court in re-reading to the jury a portion of the instructions, but, as this action of the court has not been brought up by any bill of exceptions, no question is presented.

The remaining questions argued are not presented, if, as insisted by counsel for appellee,the evidence is not in the record. Appellant's motion for a new trial was overruled December 7, 1899, and 90 days' time given appellant to file its bill of exceptions. On May 7, 1900, the following entry appears: “Now comes the defendant, by counsel, and files its bill of exceptions herein, in these words.” Then follows what purports to be a longhand manuscript of the evidence, and a certificate of the reporter. Following this is the clerk's certificate, without any seal, that “the above longhand transcript” of the evidence was filed in his office prior to the presentation of the bill of exceptions to the judge on February 13, 1900. Immediately following is this recital: “And thereupon, after all the evidence had been given and introduced by the respective parties in said cause, the defendant tendered to the court its written instructions, numbered one, two, three, four, five, six, seven, eight, nine, ten, eleven, twelve, and thirteen, and asked the court to give the same, and each separate instruction thereof, at the proper time, to the jury, but the court refused to give said instructions, or any of them, to which refusal as to each and every of said instructions the defendant separately and severally at the time excepted, and said instructions so refused were thereupon filed in the cause, and are as follows, to wit.” These instructions, with exceptions to the refusal to give them, are set out;...