Terre Haute, Indianapolis & Eastern Traction Co. v. McDermott, 11600.

• Decision Date: 02 July 1924
• Docket Number: No. 11600.,11600.
• Parties: TERRE HAUTE, INDIANAPOLIS & EASTERN TRACTION CO. v. McDERMOTT.
• Court: Indiana Appellate Court

82 Ind.App. 134

144 N.E. 620

TERRE HAUTE, INDIANAPOLIS & EASTERN TRACTION CO.

v.McDERMOTT.

No. 11600.

Appellate Court of Indiana, Division No. 1.

July 2, 1924.

Appeal from Circuit Court, Sullivan County; W. H. Bridwell, Judge.

Clarence McDermott, by next friend, George McDermott, against Terre Haute, Indianapolis & Eastern Traction Company. Judgment for plaintiff, and defendant appeals (modifying former opinion 141 N. E. 362). Affirmed.McNutt, Wallace, Harris & Randel, of Terre Haute, for appellant.

Geo. W. Wells, of Terre Haute, for appellee.

REMY, J.

Action to recover damages for personal injuries. The complaint avers, in substance, that, on the day appellee was injured, appellant was operating an electric street railway in a certain narrow and paved street in a thickly populated part of the city of Terre Haute, and over a point or place in the street which, as appellant knew, was, and for many months prior thereto had been, in general use by the public, including small children who would, at such place, frequently congregate and cross over the street and the street car tracks laid therein; that at the time and place in question appellee, who “was a small boy of immature age, to wit, six years” was on the street with other small children, and “was going along and crossing” the street, at which time a street car operated by appellant's motorman was approaching the place, which street car was being operated “at a careless and negligent rate of speed, to wit, about 15 miles an hour”; that the motorman at the time, in the exercise of ordinary care, could have seen appellee and the other children in the street at a distance of 400 or 500 feet before he reached them, and did see appellee when appellee “was at or near” the street car tracks, and when the motorman was at “a distance of from 75 to 100 feet” from the place where appellee was crossing the street, and in time to have stopped the car before striking appellee; that, as the motorman with the street car approached the point in the street where appellee was crossing, he negligently failed to keep a proper lookout for children and others upon the tracks, and negligently failed to have his car under control, or to check the speed thereof, but “ran said car up to and against” appellee, thereby so injuring him that he lost his right leg; that the injury to appellee “was the proximate result of the negligence” and “each act of negligence” of appellant as averred.

Appellant unsuccessfully moved the court to require plaintiff to make his complaint more specific, to strike from the complaint certain surplusage, to set out in separate paragraphs of complaint each act of negligence relied on for recovery, and to require plaintiff to elect upon what theory of negligence he would try the cause. A demurrer to the complaint for want of sufficient facts having been overruled, the cause was put at issue, and a trial resulted in a verdict and judgment for appellee.

[1] It is unnecessary to set forth in this opinion appellant's motion to require appellee to make his complaint more specific. The motion for the most part called for matters of evidence, and not issuable facts. Under the Code of Procedure of this state, a plaintiff is required to plead the facts constituting his cause of action “in plain and concise language,” but he is not required to plead in detail the evidentiary facts. The Code also provides that-

“In the construction of a pleading for the purpose of determining its effect, its allegations shall be liberally construed with a view to substantial justice between the parties.”

[2] It is only where the precise nature of the charge is not apparent that, as the Code provides, “the court may require the pleading to be made definite and certain by amendment.” Sections 84, 126, Code Civil Proc.; sections 343, 385, Burns' 1914; sections 338, 376, R. S. 1881. Even if a motion to require a pleading to be made more specific might properly be sustained, the action of the court in overruling the motion is not always reversible error. As was said by the Supreme Court in an opinion by Judge Mitchell, in Phœnix Ins. Co. v. Rowe (1889) 117 Ind. 202, 20 N. E. 122:

“While the granting or refusing of such motions is not a matter wholly within the discretion of the nisi prius courts, it is nevertheless so far discretionary that a reversal would not follow, except in a case where it appeared that the rights of the party complaining may have suffered.”

See, also, Pittsburg, etc., R. Co. v. Simons (1907) 168 Ind. 333, 79 N. E. 911;Cleveland, etc., R. Co. v. Wolf (1920) 189 Ind. 585, 128 N. E. 38, 695;Trayser Piano Co. v. Kirschner (1880) 73 Ind. 183;Terre Haute, etc., R. Co. v. Sanders (1922, Ind. App.) 136 N. E. 54;Berkey v. Montwheler (1921) 76 Ind. App. 386, 132 N. E. 306;Kinmore v. Cresse (1913) 53 Ind. App. 693, 102 N. E. 403;Clawson v. Black (1923, Ind. App.) 138 N. E. 362.

If the motion to make more specific had been sustained and the complaint amended accordingly, the evidence admissible thereunder would have been the same as under the complaint as it now stands. On the trial, appellant did not complain of surprise; no continuance was asked; and it does not appear from the record that appellant was in any way misled as to the issues presented, or that it was in any way prevented from making preparations for its defense. While the motion might with propriety have been sustained in part, an examination of the whole record discloses that appellant was in no way harmed by the action of the court in overruling the motion. It follows that the error, if any, is not a cause for reversal. See Leimgruber v. Leimgruber (1909) 172 Ind. 370, 86 N. E. 73, 88 N. E. 593; Union Traction Co. v. City of Muncie (1921, Ind. App.) 133 N. E. 160;Western Life, etc., Co. v. Lindsay (1920) 74 Ind. App. 122, 127 N. E. 841;Rohan v. Gehring (1922, Ind. App.) 137 N. E. 288.

[3] The action of the trial court in refusing to strike out parts of a complaint is not reversible error. Fidelity Phenix Fire Ins. Co. v. Purlee (1922, Ind. Sup.) 135 N. E. 385. Nor can available error be predicated upon the action of the court in overruling a motion to separate a complaint into paragraphs. Baldwin Piano Co. v. Allen (1917) 187 Ind. 315, 118 N. E. 305;Adams v. Antles (1914) 57 Ind. App. 594, 105 N. E. 931.

It has been held by this court, in an opinion which was approved by the Supreme Court on petition to transfer, that, under the practice authorized by the Civil Code of this state, it is not reversible error, in an action for damages for negligence, to overrule a motion by defendant to require plaintiff to elect on which of two theories presented by the complaint he would try the cause. Nordyke & Marmon Co. v. Hilborg (1916) 62 Ind. App. 196, 110 N. E. 684. In the case at bar, appellant could not in any event have been harmed, since it affirmatively appears from the record that the cause was tried upon a single theory, and no claim is made by appellant that it was in any way surprised or misled.

[4] It is urged that the facts averred in the complaint are not sufficient to show actionable negligence. We cannot concur in this view.

In passing upon the sufficiency of the complaint, it is important that we keep in mind the averment that appellee at the time he received the injury complained of was “a small boy, but six years of age,” and that “there were other small boys of about the same age of plaintiff in said street and crossing said street at said time.” Although the law does not fix the age at which children are of sufficient intelligence to have imposed upon them the degree of care incumbent upon persons of mature age, it is well settled that “contributory negligence cannot be imputed to a child when of such tender years that it is, by legal presumption, incapable of judgment or discretion,” and many courts have held that children under the age of seven years are incapable of contributory negligence. Elwood St. R. Co. v. Ross (1900) 26 Ind. App. 258, 58 N. E. 535;Louis Pizitz Dry Goods Co. v. Cusimano (1921) 206 Ala. 689, 91 South. 779. In any event, as held by the Supreme Court of this state in an opinon by Judge Elliott:

“The age of a child is an important element to be considered in determining whether...