Southern Indiana Railway Company v. Hoggatt

• Decision Date: 25 April 1905
• Docket Number: 5,225
• Citation: 73 N.E. 1096,35 Ind.App. 348
• Parties: SOUTHERN INDIANA RAILWAY COMPANY v. HOGGATT
• Court: Indiana Appellate Court

73 N.E. 1096

35 Ind.App. 348

SOUTHERN INDIANA RAILWAY COMPANY v. HOGGATT

No. 5,225

Court of Appeals of Indiana

April 25, 1905

From Daviess Circuit Court; H. Q. Houghton, Judge.

Action by Winfield A. Hoggatt against the Southern Indiana Railway Company. From a judgment for plaintiff, defendant appeals.

Affirmed.

F. M Trissal, T. J. Brooks and W. F. Brooks, for appellant.

W. R Gardiner, C. G. Gardiner and T. D. Slimp, for appellee.

OPINION

ROBY J.

Appellee brought this suit to recover damages for personal injuries alleged to have been caused by the negligence of the appellant. The complaint was in one paragraph. A demurrer for want of facts was overruled, answer in general denial filed, trial, verdict for $ 200, with answers to interrogatories. Motions for judgment on the answers to interrogatories and for a new trial were overruled, and judgment was rendered upon the general verdict, from which this appeal is taken.

The errors assigned and not waived question the action of the court in overruling said motions.

1. The substance of the complaint, so far as appellant's negligence is concerned, was that it had negligently allowed a handle bar upon one of its hand-cars to become rotten and defective, and that it had negligently allowed a certain cogwheel to become broken and defective, that appellee was in appellant's employ, engaged in laying track for it, and that it used such hand-car to transport its employes; and that appellee was injured by reason of said defects and each of them. It is stated in the answers to interrogatories that the handle bar was defective as alleged, and that there was no defect in the cogwheel. Appellant's motion for judgment is founded upon the proposition that both acts of negligence averred must be proved in order to justify recovery. This contention can not be approved. A handle bar may be defective equally whether a cogwheel is or is not broken. It is only necessary for the plaintiff to prove so many of the acts alleged by him as constitute a cause of action. Long v. Doxey (1875), 50 Ind. 385; Louisville, etc., R. Co. v. Hart (1889), 119 Ind. 273 at 273-280, 4 L. R. A. 549, 21 N.E. 753.

2. In support of the assignment based upon the overruling of the motion for a new trial attention is directed to instructions eleven and seventeen requested by the appellant and not given. The court did give fourteen instructions at appellant's request, in which the law...