Wellington v. Reynolds

• Decision Date: 24 January 1912
• Docket Number: 21,988
• Parties: Wellington v. Reynolds
• Court: Indiana Supreme Court

97 N.E. 155

177 Ind. 49

Wellington v. Reynolds

No. 21,988

Supreme Court of Indiana

January 24, 1912

From Madison Circuit Court; Charles K. Bagot, Judge.

Action by James Reynolds against James Wellington. From a judgment for plaintiff, defendant appeals. (Transferred from the Appellate Court under § 1405 Burns 1908, Acts 1901 p 590.)

Affirmed.

Kittinger & Diven, for appellant.

W. F Edwards and P. B. O'Neill, for appellee.

OPINION

Monks, J.

Appellee brought this action to recover damages for injuries caused by appellant's automobile running against him at the corner of Main and Ninth streets in the city of Anderson. Trial of said cause resulted in a verdict and judgment in favor of appellee.

Appellant first contends that the court erred in overruling his demurrer to the complaint. It is claimed that the complaint does not allege that there was a duty owing from appellant to appellee at the time of the injury. It is true, as contended by appellant, that the complaint in this kind of a case must show, (1) a duty owing from the defendant to the plaintiff, (2) a breach of that duty, and (3) an injury to plaintiff as a result of the breach of duty. The duty must be shown by allegation of facts from which the law will imply a duty, and not by direct averment, and if facts are alleged which disclose a duty, then a general averment of negligence will make the complaint sufficient as against demurrer. Lake Erie, etc., R. Co. v. McFall (1905), 165 Ind. 574, 579, 76 N.E. 400.

The complaint in this case shows that appellee was in the center of Main street, running north, trying to catch a street-car; that appellant, driving his automobile, was coming up behind appellee, and gradually approaching him; that appellant saw appellee in the street ahead of him, but that appellee was unaware of the presence of the machine. The right of appellee to be in the street for the purpose of boarding a street-car is clear. Under the conditions alleged in the complaint, it was the duty of appellant to exercise ordinary care to avoid running against appellee. A direct allegation of this duty would merely have been a conclusion of the pleader, and could not have helped the complaint. Chicago, etc., R. Co. v. Lain (1908), 170 Ind. 84, 89, 83 N.E. 632, and cases cited; Pittsburgh, etc., R. Co. v. Peck (1905), 165 Ind. 537, 540, 76 N.E. 163; Pittsburgh, etc., R. Co. v. Lightheiser (1904), 163 Ind. 247, 252, 71 N.E. 218, and cases cited; Jeffersonville, etc., R. Co. v. Dunlap (1868), 29 Ind. 426.

As the facts alleged in the complaint show that appellant owed appellee a duty to use ordinary care not to run against him, the allegation that appellant "carelessly, negligently and wilfully ran against * * * plaintiff" was sufficient. Cleveland, etc., R. Co. v. Morrey (1909), 172 Ind. 513, 522, 88 N.E. 932; Chicago, etc., R. Co. v. Lain, supra, and cases cited.

The complaint is further attacked on the ground that it does not connect the injury with any definite time or place, and that it does not charge that appellant's automobile struck appellee, but that appellant in person ran into him. The part complained of reads as follows: "That on May 3, 1908, plaintiff came from the south part of the city on a Meridian street car, and was in the act of transferring at the aforesaid point to the Third street car, which said Third street car was moving away from the opposite side of Ninth street, the place where it was the custom for it to wait for said passengers as aforesaid, and the plaintiff, believing he could wave to the conductor and have him stop the car, followed it, waving his hand, going forward on the east side of Main street, with his face to the north, and his attention being drawn to the car ahead of him, which he believed would stop for him, and without any warning to plaintiff, defendant, running an automobile going in the same direction of the plaintiff, and continued to gain on him, knowing the danger and knowing that plaintiff's back was toward the automobile, and he had no knowledge that said automobile was coming up behind him, and after said automobile, driven by defendant, had followed behind him about sixty-five feet, gaining upon him constantly, and plaintiff's back was still turned toward the automobile, defendant carelessly, negligently and wilfully ran against, knocked down and ran over plaintiff, and injured him internally, broke the bones of one of his feet, and bruised him in many places on his body and limbs." While the part of the complaint set out may not be a model, it is not open to said objections. The effect thereof was to charge that "defendant carelessly, negligently and wilfully ran against" appellee immediately "after said automobile driven by defendant had followed behind him about sixty-five feet, gaining on him constantly" and no one would suppose that the word "after" referred to some indefinite time subsequent to these events. No one would understand from reading the complaint that appellee was run into by appellant in person instead of by the automobile.

Instruction six, given by the court, informed the jury "that if there is no evidence on the question of contributory negligence on the part of plaintiff, or if the evidence on that subject is equally balanced, then you should find that plaintiff was free from contributory negligence; and if you find there is no evidence on the question of defendant's negligence, or if the evidence on that question is equally balanced, or if the preponderance of the evidence is in favor of defendant on this...