Tippecanoe Loan & Trust Co. v. Cleveland , C., C. & St. L. Ry. Co.

• Decision Date: 18 November 1914
• Docket Number: No. 8075.,8075.
• Citation: 106 N.E. 739,57 Ind.App. 644
• Parties: TIPPECANOE LOAN & TRUST CO. v. CLEVELAND, C., C. & ST. L. RY. CO.
• Court: Indiana Appellate Court

57 Ind.App. 644

106 N.E. 739

TIPPECANOE LOAN & TRUST CO.

v.CLEVELAND, C., C. & ST. L. RY. CO.

No. 8075.

Appellate Court of Indiana, Division No. 2.

Nov. 18, 1914.

On separate petitions for rehearing filed by both appellant and appellee, and on appellant's motion to modify mandate. Both petitions and motion denied.

For former opinion, see 104 N. E. 866.

Wilson & Quinn and Thompson & McAdams, all of La Fayette, for appellant. Stuart, Hammond & Simms, of La Fayette, (L. J. Hackney and F. L. Littleton, both of Indianapolis, of counsel), for appellee.

LAIRY, J.

The original opinion in this case announces the proposition that, in charging the violation of a duty in a negligence case, it is sufficient, as a matter of pleading, to allege that an act was negligently done or negligently omitted, without stating the conditions under which the act was done or omitted or the circumstances which attended it. The opinion further holds that the conditions and circumstances under which an act was done or omitted may be proved at the trial as evidentiary facts to be considered by the jury in deciding whether or not ordinary care required the defendant to do the act charged to have been negligently omitted, or to avoid the act alleged to have been negligently done.

In a very able brief for rehearing appellee's counsel forcefully challenge the correctness of the legal propositions just stated. Counsel asserts that it is not enough to allege that an act was negligently done or negligently omitted, but that facts must be alleged which show a duty resting upon the defendant to do the particular act alleged to have been negligently omitted or to avoid the particular act alleged to have been negligently performed; and it is contended that, in order to show this duty, the surrounding conditions and existing circumstances must be alleged. A number of authorities are cited and discussedby counsel to sustain this position. Muncie Pulp Co. v. Davis, 162 Ind. 558, 70 N. E. 875;Lake Shore, etc., R. Co. v. Butts, 28 Ind. App. 289, 62 N. E. 647;Lake Erie, etc., R. Co. v. Bray, 42 Ind. App. 48, 84 N. E. 1004;Pittsburg, etc., R. Co. v. Peck, 165 Ind. 537, 76 N. E. 163;Cleveland, etc., R. Co. v. Morrey, 172 Ind. 513, 88 N. E. 932;Indianapolis Traction Co. v. Mathews, 177 Ind. 88, 97 N. E. 320.

[1] It may be stated as well-settled law that three elements are necessary to constitute actionable negligence: First, the existence of a duty resting on the defendant to exercise care in favor of plaintiff; second, failure on the part of the defendant to observe such duty; and, third, some injury or damage to the plaintiff resulting proximately from such failure on the part of the defendant.

[2] It is equally well settled that, where a complaint fails to state facts showing that the defendant owed a duty to exercise care in favor of plaintiff, the omission will not be supplied by an allegation that the defendant negligently did, or negligently failed to do, some act which caused injury to the plaintiff. Chicago, etc., R. Co. v. Lain, 170 Ind. 84, 83 N. E. 632; Muncie Pulp Co. v. Davis, supra; Pittsburg, etc., R. Co., v. Lightheiser, 163 Ind. 247, 71 N. E. 218, 660;Evansville, etc., R. Co. v. Yeager, 170 Ind. 139, 83 N. E. 742;Chicago, etc., R. Co. v. Barker, 169 Ind. 670, 83 N. E. 369, 17 L. R. A. (N. S.) 542, 14 Ann. Cas. 375.

[3] The duty to use care arises, as a matter of law out of some relation existing between the parties. Where a given relation is shown between the plaintiff and the defendant, the court can say, as a matter of law, whether or not the defendant owed a duty to the plaintiff to exercise care. If the facts alleged show such a relation between the parties as to impose upon the defendant a legal duty to use care toward plaintiff, the complaint is sufficient in so far as it is required to state a duty. The complaint must then show that the defendant violated this duty by falling to exercise ordinary care. This may be done by alleging that ordinary care required the defendant to do a certain act, and that he failed to perform it, or, what amounts to the same thing, that the defendant negligently failed to do such act. An allegation that the defendant negligently did an act amounts to an allegation that ordinary care required that that act should have been done in a different manner or avoided altogether, and that the defendant failed to use ordinary care in that particular. It has been uniformly held that an allegation that an act was negligently done or negligently omitted is a sufficient charge that the defendant failed to exercise ordinary care. Citation of authorities seems unnecessary, but we call attention to a few of the later cases. Lake Erie, etc., R. Co. v. Beals, 50 Ind. App. 450, 98 N. E. 453;Pittsburg, etc., R. Co. v. Collins, 163 Ind. 569, 71 N. E. 661;Lake Erie, etc., R. Co. v. Bray, 42 Ind. App. 48, 84 N. E. 1004;Cleveland, etc., R. Co. v. Berry, 152 Ind. 607, 53 N. E. 415, 46 L. R. A. 33.

A distinction must be observed between the duty to exercise care by one person in favor of another and the requirements of ordinary care in the performance of such duty. The first arises, as a matter of law, out of the relations existing between the parties, but the second is to be determined as question of fact from the conditions surrounding, and the circumstances attending, the transaction. A duty to use care is the basis upon which actionable negligence rests. In the absence of some duty resting upon the party who causes the injury, to use some care in favor of the party who received such injury, there can be no negligence. This duty to use care must be imposed by statute, or may rise as a matter of law out of certain relations between the parties. Where such relations as that of master and servant, bailor and bailee, or carrier and passenger exists, the law recognizes the duty to use care as growing out of such relation. The duty to use care is imposed upon persons using streets and highways, in favor of other persons who are likewise using them, and this duty also arises out of the relative rights of the parties. The relations which arise between individuals are so varied that we can mention only a few for the sake of illustration. When it appears that a certain relation exists between the parties, the duty, if any, which such relation creates, is never a question of fact. Such duty is always a matter of law, to be declared by the court.

However, when the court has determined that such a relation...