Southern Indiana Gas & Elec. Co. v. Winstead

• Decision Date: 25 March 1931
• Docket Number: No. 14077.,14077.
• Citation: 92 Ind.App. 329,175 N.E. 281
• Court: Indiana Appellate Court
• Parties: SOUTHERN INDIANA GAS & ELECTRIC CO. v. WINSTEAD.

92 Ind.App. 329

175 N.E. 281

SOUTHERN INDIANA GAS & ELECTRIC CO.

v.WINSTEAD.

No. 14077.

Appellate Court of Indiana, in Banc.

March 25, 1931.

Appeal from Posey Circuit Court; Herdis F. Clements, Judge.

Action by William H. Winstead against the Southern Indiana Gas & Electric Company. Judgment for plaintiff, and defendant appeals.

Reversed, and a new trial ordered.Robinson & Bamberger, of Evansville, and Espenschied & Espenschied, of Mt. Vernon, for appellant.

Robert W. Armstrong, of Evansville, for appellee.

WOOD, J.

This was an action brought by the appellee against the appellant for damages for personal injuries suffered by appellee in a collision at a street crossing by an automobile occupied and driven by appellee with a street car operated by appellant. The cause was submitted to a jury for trial, a verdict was returned in favor of appellee, upon which judgment was rendered. Appellant filed a motion for new trial, this was overruled, and appellants have appealed to this court.

The appellant assigns as error (1) the overruling of its demurrer to appellee's complaint; and (2) the overruling of its motion for a new trial.

Before considering the errors complained of by appellant, it is necessary that we give consideration to the sufficiency of the record. Appellee insists with much vigor, that neither the instructions nor the bill of exceptions containing the evidence are in the record. We have made a careful examination of the authorities and the record, and are thoroughly satisfied that the contention of the appellee cannot be sustained.

[1] The record shows that upon January 20, 1930, appellant's motion for a new trial was overruled, and it was given ninety days in which to file a bill of exceptions containing the evidence. The bill of exceptions was presented to and signed by the trial judge upon March 20, 1930. After which, on the same day, as recited by the record, it was filed with the clerk of the circuit court as a part of the record in the cause. The certificate of the clerk to the transcript fully identifies the bill of exceptions as the original one filed in his office. The evidence is in the record, section 686, Burns' 1926; Zollman v. B. & O. Ry. Co. (1918) 70 Ind. App. 395, 121 N. E. 135; and authorities cited.

It is apparent from an examination of the record that the provisions of the Acts of 1907, p. 652, c. 283, section 586, Burns' 1926, setting out the method of incorporating instructions in the record, were adopted in this case. The requirements of this statute were followed in detail, and the instructions are properly in the record.

Counsel for appellants have limited the discussion in their brief to alleged errors committed by the court in reading to the jury instructions No. 3, 5, 7, 11, and 13, tendered by appellee, and state in their reply brief that they have waived all other alleged errors of which complaint was made. A consideration of these instructions requires brief reference to the complaint.

Appellee's complaint consisted of one paragraph. The gist of that portion thereof which charges negligence on the part of appellant is as follows: That appellant operated a street railway along Barker avenue in the city of Evansville; that, at a point in said street where the rails of the track curve from the west side of the street to the center thereof, appellant provided a crossing so that vehicles traveling south on the street could cross over the tracks to the west side thereof; that this crossing was maintained in a careless and negligent manner, so that the wheels of automobiles in attempting to cross over the track would strike and slide against the rails, which were permitted to extend above the surface of the earth, and thus hold automobiles on the track; that, because of this manner of maintaining said crossing, appellee, while attempting to cross over with his automobile, was held thereon, and unable to extricate himself; that, while he was in that perilous position, the appellant's servants, with full knowledge of that fact and seeing the position of appellee for more than 400 feet, carelessly and negligently ran a street car toward appellee without making any effort to stop, check, slow down, or bring it to a standstill; that, seeing and knowing of appellee's situation and that he was unable to extricate himself from the same, said servants continued to run a street car, at the rate of 30 miles per hour, upon and over appellee, causing permanent injuries; that said injuries were caused all by reason of the carelessness and negligence of the appellant, its servants and employees, as charged in the complaint, and not otherwise; that the appellant and its servants in charge of the street car, were careless and negligent in running it onto and over appellee, when they saw his perilous situation, and were careless and negligent in failing and refusing to stop the car and allow appellee to escape injury; that appellee was without fault.

Counsel for appellant take the position that the complaint cannot be construed upon any theory, other than that the injuries suffered by appellee were the result of two concurring acts of negligence, and that, in the absence of either one of them, the collision between the automobile and street car could not have occurred. Counsel for appellee say in their brief: “The court will observe that this complaint is predicated upon the negligence of the defendant in maintaining a dangerous crossing on Barker Avenue, one of the streets in the City of Evansville, and also in negligently running and operating one of its cars and allowing the same to run onto the plaintiff, when his car was caught on one of the steel rails of the defendant's street car track, and in a place where he could have been seen by the motorman in ample time to have checked the street car.”

It is very evident from an examination of the complaint that it was drawn upon the theory that the injuries alleged to have been received by appellee were caused by two dependent, concurring acts of negligence committed by appellant, viz. the negligent maintenance of the crossing, and the negligent operation of the street car, the proof of both of which is necessary to entitle appellee to a recovery. But it is insisted on behalf of appellee, notwithstanding the statement contained in his brief, and above quoted, that “this is not a case where both acts of negligence must concur to produce the injury,” which, if true, would have the effect of attributing to the complaint a theory quite different from the one which we adopt.

[2] That a complaint must proceed on some definite theory, which must be adhered to throughout the trial and upon appeal, is so thoroughly settled that the citation of authorities is unnecessary.

[3] In a case where two concurring acts of negligence, are alleged to have been committed by the same party, from which an injury results, and which injury would not have resulted, in the absence of either one of said acts, in order to sustain a recovery for damages in such a case, it is necessary...