The Evansville And Richmond Railroad Company v. Maddux

• Decision Date: 13 June 1893
• Docket Number: 15,883
• Citation: 34 N.E. 511,134 Ind. 571
• Parties: The Evansville and Richmond Railroad Company v. Maddux, by Next Friend
• Court: Indiana Supreme Court

34 N.E. 511

134 Ind. 571

The Evansville and Richmond Railroad Company v. Maddux, by Next Friend

No. 15,883

Supreme Court of Indiana

June 13, 1893

Original Opinion of February 18, 1893, Reported at: 134 Ind 571.

OPINION

Howard, J.

Appellant contends that the demurrer to the first paragraph of the complaint should have been sustained, because amongst other reasons, no particular point is indicated where the road was more dangerous than at other points. Even if this were true, we think that a motion to make more specific would have been the proper pleading to reach such defect. A demurrer will not be sustained for mere indefiniteness or uncertainty, which might be reached by a motion to make more certain and particular.

The jury found the defect to be "at the point where the accident occurred." This correction could have been made on proper motion in the trial court, and will be deemed to have been so made.

In Lowry v. Dutton, 28 Ind. 473, the court held that an objection that a complaint for trespass does not state where the trespass was committed is not raised by a demurrer for want of facts. And in Hamilton v Winterrowd, 43 Ind. 393, it was held that an amendment which might have been made in the court below, to make a pleading correspond with the proof, will in the Supreme Court be deemed to have been made. See, also, Krewson v. Cloud, 45 Ind. 273, and Bristol Hydraulic Co. v. Boyer, 67 Ind. 236.

We think that the ninth finding of the jury shows that appellant knew of appellee's youth and inexperience, and knew that appellee had no opportunity of discovering the condition of the road at the point of the accident, and hence that there was in this respect no variance between the allegations and the proof.

The opinion does not draw as an intendment from the verdict the fact that appellee's parents were dead. He sued by next friend, and the fifteenth finding is that he was without other support than his daily labor. He was, therefore, without parental support, and the opinion goes no further than this.

There is no conflict between the decision in this case and the decision since rendered by this court in Evansville, etc., R. R. Co. v. Henderson, 33 N.E. 1021. The statement of facts made in the pleadings was quite different in that case, as appears from the opinion there filed. But, in addition, the decision in that case turned almost altogether upon the evidence, while in this case...