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Appeal from Circuit Court, Newton Coun- 1 count of the diversity of citizenship of the ty; C. W. Hanley, Judge.

parties. The petition to remove alleges that Action by Frank Bricker against Warren appellee, plaintiff below; demands judgment Springer. From a judgment for plaintiff, for $5,000. Where an action like the one defendant appeals. Case transferred from at bar, instituted in a state court, is between Appellate Court, under Burns' Ann. St. 1901, citizens of different states, and the amount 1337u. Affirmed.

in controversy is in excess of $2,000, ex

clusive of interest and cost, the removal Foltz & Spitler, for appellant. Jesse E.

thereof to the proper federal court upon a Wilson, for appellee.

petition and bond being filed is authorized

and enforced by a federal statute. It is JORDAN, J. Appellant is a resident of true in this case that each of appellee's the city of Chicago, Cook county, Ill., and paragraphs of complaint alleges that by appellee is a resident of Jasper county, state reason of the loss of his right hand he is of Indiana. On February 4, 1903, the latter damaged in the sum of $5,000, but in each instituted this action by a complaint of two of the paragraphs, however, he demands paragraphs, filed in the Jasper circuit court. judgment for damages in a sum less than Subsequently the cause was venued to the $2,000. In fact there is nothing in the Newton circuit court, wherein it was tried record as certified up, aside from the petiby jury. Appellant is the owner and oper tion to remove, to show that the demand for ator of a large ranch or farm situated in damages under the complaint, either at the Jasper county, Ind., and on and prior to the time of the filing thereof, or subsequent 20th day of November, 1902, appellee was thereto, was for an amount in excess of in appellant's employ, serving him in the $2,000. The trial court, in passing upon the performance of general work on said farm. petition to remove to the United States On the aforesaid date, while appellee was court, was not required to look only to engaged at work for appellant about a corn the averments thereof to ascertain the shredder which was then and there operated amount actually in controversy, but was by the latter on his said farm, the paddle also required to look to the complaint in and fans of said shredder were broken into order to determine the amount. As a genpieces, and by reason of the said accident eral rule, in the absence of any provision of all the fingers of appellee's right hand were law to control, the amount in controversy mutilated and severed therefrom, and his is deemed and held to be the amount desaid hand was thereby rendered useless. manded by the plaintiff in his complaint. The accident in question which caused said Especially is this true in actions for uninjuries is imputed or attributed to the neg- | liquidated damages. Desty on Federal Proligence of appellant in maintaining and cedure, & 96; Moon on Removal of Causes, operating said corn shredder. On the trial § 84; Lake Erie, etc., Ry, Co. V. Juday, 19 the jury found in favor of appellee and re- | Ind. App. 436, 49 N. E. 843; Western, etc., turned a verdict awarding him damages Tel. Co. v. Levi, 47 Ind. 552; 18 Ency. of for the injuries sustained. Along with the Pl. & Pr. p. 269. Although appellee may general verdict answers to a series of in have been damaged in the sum of $5,000, terrogatories were also returned. Appellant | as stated in the complaint, nevertheless that moved for a new trial for reasons therein was not the amount for which he demanded assigned, this motion was denied, and judg-, a recovery He appears to have been satisment was pronounced on the general verdict fied to expressly limit the amount which of the jury. By the errors assigned ap he thought he ought to recover and for pellant seeks to have reviewed the several which he demanded judgment to a sum rulings of the court, to wit: First. Deny-| under $2,000. The identical question as here ing a petition to remove the cause from the presented was decided adversely, and propstate to the federal court. Second. Overrul erly so, to appellant's contention in Lake ing the demurrer to each paragraph of the Erie, etc., Railway Co. v. Juday, supra. complaint. Third. Overruling his motion As the amount in controversy, as shown by for a new trial.

the demand of the complaint, does not exCounsel for appellee has moved to dis-i ceed $2,000, the court's denial of appellant's miss this appeal for reasons enumerated petition to remove was a correct ruling. in the motion, wherein, among other grounds, Appellant next insists that each paragraph is assigned the noncompliance by appellant of the complaint is insufficient, and that with the rules of this court in the prepara therefore the court erred in overruling his tion of bis brief. Several infirmities in the demurrer. He has, however, neglected to record are also stated and urged for dis- | set out in his brief either of the paragraphs missal. We conclude, however, that there in question, or to give a substantial stateis not sufficient merit in the motion to dis | ment of the facts therein alleged, as exmiss to justify the sustaining thereof. The acted by clause 5 of rule 22 of this court motion is therefore overruled.

(55 N. E. vi). Therefore it must be held that Appellant's first contention is that the he has waived the assignments of error in court erred in denying his petition to re- regard to their insufficiency on demurrer. move the cause to the federal court on ac- | Perry, etc., Co. v. Wilson, 160 Ind. 435, 67

N. E. 183, and cases there cited; Citizens' , 8, refused over appellant's request, it may National Bank v. Alexander (Ind. App.) 73 be said that it in effect is embraced in N. E. 279. To merely state that a pleading those given by the court, and for that reafails to allege this or that fact cannot be son, if for no other, it was properly reregarded as a "concise statement of so much fused. of the record as fully presents the error We have read and considered the evi. and the exception relied on, as required by dence in this cause, and are satisfied that said rule." Buehner, etc., Co. v. Feulner It fully sustains the judgment on all mate(Ind. Sup.) 73 N. E. 816.

rial points. Finding no available error, Appellant complains of the ruling of the the judgment is affirmed. trial court in giving and refusing to give certain instructions. Some of the charges in controversy are set forth in his brief.

(38 Ind. App. 513) Others are not; but in lleu thereof we are UNION TRACTION CO. OF INDIANJ V. merely referred to that part of the record

SULLIVAN. (No. 4,997.)* where they may be found. Therefore the

(Appellate Court of Indiana, Division No. 1 error, if any, which is predicated on in.

Nov. 28, 1905.) structions not set out in appellant's brief

1. NEGLIGENCE - CONTRIBUTOBY NEGLIGENCE as required by rule 22 (55 N. E. VI) must,

DEFENSE. under decisions of this court, be considered Contributory negligence is a matter of de as waived. Huey Co. V. Johnston (Ind. Sup.) fense. 73 N. E. 996, and cases there cited. We

[Ed. Note.For cases in point, see vol. 37, have, however, read and considered all of

Cent. Dig. Negligence, $ 229.] the instructions given, as well as those re

2. TRIAL SPECIAL FINDINGS-CONFLICT WITH

GENERAL VERDICT, fused, and, without referring to them in

In an action for personal injuries; a gendetail, we are of the opinion that the giving eral verdict in favor of plaintiff is, in effect, & or refusing to give the instructions in con finding in his favor on the issue of contributory troversy does not, under the circumstances,

negligence and upon every issuable fact neces

Bary to sustain his cause of action, and is sup constitute reversible error.

ported, as against special findings, by every The court, at the request of appellant, presumption and inference of fact which may gave a series of instructions to 'the jury,

be drawn from the evidence properly admitted

under the issues, and will yield only after some of which may be said to have been

resolving all reasonable presumptions against more favorable to him than he had a right such special findings. to demand. The court's charge to the jury, [Ed. Note.- For cases in point, see vol. 46, when considered in its entirety, and not Cent. Dig. Trial, $ 857.) by detachments, satisfies us that the jury 3. CARRIERS-INJURIES TO PASSENGEB-PREwas properly advised in regard to the law

SUMPTIONS BY PASSENGER. governing the cause. While possibly it may

A passenger on a street car may presume,

| in the absence of knowledge to the contrary, be said that the court in charging the jury that all necessary precautions for his safe unnecessarily dealt with abstract proposi- | transportation have been and will be taken. tions of law, and that some of the charges

4. SAME-CONTRIBUTORY NEGLIGENCE. " given standing alone are not strictly ac

A passenger who knowingly exposes him

self to danger in a way that an ordinarily prucurate, but when the charge as a whole dent person would not have done under the cir. is taken into consideration we fail to dis cumstances, and is thereby injured, or who by cover wherein appellant was by the inac

reasonable precautions could have forseen the

danger and avoided the injury, cannot recover curacy in question barmed or prejudiced

on account of such injury. in any of his substantial rights. In con (Ed. Note.--For cases in point, see vol. 9, struing the instructions as a whole it is Cent. Dig. Carriers, 1348.) apparent we think that the jury must have 5. NEGLIGENCE-CONTRIBUTORY NEGLIGENCE certainly understood what, in the eye of QUESTION FOR JURY. the law, under the facts, were the rights

The question of contributory negligence is

for the jury, except where the exact standard of the respective parties. The rule is well

of duty is fixed. settled by the decisions of this court that [Ed. Note.-For cases in point, see vol. 37, if, upon consideration of all of the instruc Cent Dig. Negligence, 88 286, 333–346.) tions in the case, it fairly appears that the 6. CABRIERS-INJURIES TO PASSENGERS-CONlaw was stated to the jurors with substan. TRIBUTORY NEGLIGENCE - QUESTION FOB tial accuracy, so that they could not have

JURY.

In an action against a street railway for been misled, no reason under the circum

injuries to a passenger riding on the running stances is afforded for reversal, although board of an open car, caused by his coming in some particular instruction or detached por

contact with iron posts of a bridge over which tion thereof cannot be said to be precisely

the car passed, whether plaintiff was guilty of

contributory negligence, in that he might have correct. Shields v. State, 149 Ind. 395, 49 taken a position in the front vestibule of the N. E. 351, and cases there cited. Some of

car, where he would not have been injured, and the instructions in question were appar

in that he bad ridden over the bridge before

and had a general knowledge of its construction, ently refused because they were not an

held, under the evidence, a question for the jury, accurate exposition of the law, and others (Ed. Note.--For cases in point, see vol. 9, for the reason that they were covered by Cent. Dig Carriers, i 1379.] those given. In regard to instruction No. Rehearing denlod. Transfer to Supreme Court 7. SANE - NEGLIGENCE OF CARRIER-SIMILAB | fall off of the same upon the girders, ties, and INJURIES.

denied

rods at the side of and on said track and lu an action against a street railway for

against said car, by means whereby plaintiff injuries to a passenger standing on the running board of an open car, caused by his coming in was greatly and painfully injured and suffercontact with the structural work of a bridge ed a long, deep cut and bruises on the left over which the car passed, the fact that no

side of his head, a painful cut and bruise on passenger had ever before been injured by coming in contact with the bridge, during the

his left shoulder, a fracture of the eighth long use thereof by defendant, was to be con rib on the left side, and numerous painful sidered by the jury, but would not of itself re bruises upon various parts of bis body, and lieve defendant from liability for the injury, if

suffered a severe shock to his entire system; it so maintained its road as to endanger the lives and limbs of passengers riding on the

that by reason of said injury and the sufferrunning board of its cars by its invitation and ing and pain consequent therefrom plaintiff with its permission, and with the recognition

has been damaged,” etc. Appellant answered of the public that such running board was for

by general denial. the carriage of passengers. 8. DAMAGES - SPECIAL DAMAGE — INTERFER

1. Appellant assigns as error in this court ENCE WITH BUSINESS-NECESSITY OF PLEAD the overruling of its motion for judgment ING.

on the interrogatories and answers thereto, Damage consisting of loss of time or inter

notwithstanding the general verdict. One ference with the business, trade, or profession of the person injured, is regarded as special,

hundred and fifty-eight interrogatories were and is recoverable, in an action for the injuries, submitted to the jury, which they answered only when specially averred in the complaint. and returned with their general verdict. By (Ed. Note.—For cases in point, see vol. 15,

this great number of interrogatories subCent. Dig. Damages, 88 237, 413.)

stantially the following facts are found: Appeal from Circuit Court, Randolph Some time before August 29, 1901, the day County; J. W. Macy, Judge.

appellee received his injury, a bridge across Action by Martha Sullivan against the White river had been constructed, and from Union Traction Company of Indiana. From

the time of its construction until the day of a judgment for plaintiff, defendant appeals. the accident it had been maintained by Reversed.

Delaware county, or the city of Muncie, and G. R. Call, J. A. Van Osdol, and Engle, not by appellant. It was so constructed and Caldwell & Perry, for appellant. George H. maintained that the center portion of the Koons and B. F. Marsh, for appellee.

same was used as a wagon way across said

river, and on either side of this wagon way MYERS, J. Appellee instituted this suit at the entrance of the bridge from the city of against appellant to recover damages for per Muncie were upright iron or steel posts sonal injury. The action was begun in the about 30 feet high, forming part of the Delaware circuit court, and on change of structural work thereof. On the west side venue sent to the Randolph circuit court, of this wagon way and from the iron or and there tried before a jury, resulting in a steel posts said bridge was extended, and verdict for appellee and judgment on the this extension was used by appellant for its verdict. This cause was tried upon an street car tracks in crossing the river with amended complaint in one paragraph, in its cars; that on said August 29th, and for 10 which appellant is averred to be the owner or 12 years prior thereto, appellant had been and engaged in operating an electric street engaged in operating street cars by electricity railway in the city of Muncie, and suburbs in and through the streets of the city of thereof, and that one of its lines crosses a Muncie and over this bridge, and on said day bridge over White river, on which line it at about 9 o'clock in the evening, appellee, beused what is known as open summer cars; ing in the city of Muncie, desired to go to the that on August 29, 1901, appellee was a pas Fair Grounds, the place where he was then senger on one of such cars, and, while riding engaged in taking care of horses, and with a on the running board thereof, collided with a companion boarded one of appellant's cars, post forming a part of the upper structural No. 107, at a point in the city of Muncie, for work of said bridge and was knocked off and the purpose of being carried as a passenger injured. The complaint charges negligence

to his destination, which was across the in running said cars in such close proximity bridge; that said car No. 107 was one used to said post as to endanger the life and limbs by appellant and run over its line from the of passengers so riding; that appellee did not city of Muncie across the bridge and to the know of the danger of colliding with said post Fair Grounds; that said car was one known and was not warned by appellant or any one as an "open summer car," a little over 29 feet else of the danger therefrom; that the car in length, having a vestibule in each end, the was filled with passengers, leaving the run front vestibule used and occupied by the moning board the only place for appellee to ride torman, and a general passenger apartment at the time of boarding the car, and averring divided into eight spaces by posts about two "that, by reason of the negligence of the de inches thick on either side, extending from fendant, as aforesaid, plaintiff's body struck the bottom of the car to and supporting the the iron post on the southwest end of said roof, and seats extending across the car bebridge with great force and violence, causing tween the posts. On each side of the car tim to loose his footing upon said car and was a running or footboard extending almost the entire length of the car and was used , work of the bridge, he would not have come for the convenience of passengers in their in contact with the iron or steel post; that ingress and egress to and from the car and at that time, and each year for several years for the convenience of appellant's employés prior to the day of this injury, fairs, and in charge thereof. This footboard was about | occasionally other public entertainments, 7 inches wide and about 1 foot and 10 inches were held at said Fair Grounds, and frebelow the floor of the car, and its outer edge quently passengers on cars operated on this about 9 inches from the edge of the car floor; | line, including the one on which appellee was that when appellee and his companion board. riding, were permitted to and did stand on ed the car the same was filled with people, the running boards thereof; that at the time some standing up between the seats, and the appellee was injured there were five or six rear vestibule filled by people standing there persons on the running board of the car on in, the motorman being the only person oc which appellee was standing; that appellee cupying the front vestibule; that it was had been a resident of the city of Muncie customary at the time of appellee's injury, for about 10 or 12 years prior to the time of when the cars were crowded, for passengers receiving the injury, and knew of the bridge to stand in the front vestibule and between and the general manner of its construction, the seats in the main passenger compartment and in order to reach his destination upon when such seats were filled, and it would that evening he would pass over it, and that have been possible for appellee to have stood he had theretofore crossed the bridge in apbetween the seats of this car or in the front pellant's cars; that at the time appellee was vestibule. Appellee and his companion injured the car was brilliantly lighted with boarded the car a little to the rear of the a number of electric lights and was egi center of the same, and after appellee had with a lighted headlight on the front end looked for a seat, took an erect and upright thereof; that both sides of the car were open position directly opposite one of the upright and unobstructed, except from its upright posts and stood on the running board with posts, and that appellee was the first pashis back in the direction the car was moving senger ever injured by coming in contact and with his right arm around one of such

with the iron structural work of the bridge ; upright posts; his companion assuming a

that on the evening of the injury a person position standing on the running board, with upon the car observed appellee's position and his left arm around one of the upright posts

that he would likely come in contact with of the car, the two facing each other, which

the bridge, called to appellee in substantially position they occupied, carrying on a conver

the following words: “Look out, stranger, sation between themselves from the time

the bridge will hit you”-but that appellee they boarded the car in the city of Muncie did not hear said warning; that appellee was until they reached the bridge and appellee's

not warned by the motorman or the conhead near his left ear, his left shoulder and ductor of the car's approach to the bridge; arm came in contact with said iron or steel

that appellee at the time of his injury was 33 post and he was knocked down and off of the

years old and was earning $12 a week, and car and injured ; that appellant gave no warn

on account of his injury was unable to work ing of the car's approach to the bridge nor

at his usual occupation for a period of six was any warning given by any other person

weeks. to the knowledge of appellee. It is also

It has been a number of times held by this found by the jury that appellee could have

court, and appellant concedes, that it is not leaned in and between said upright posts

negligence per se for a passenger to ride on or stood with his body against and parallel

the running board of a crowded car prowith said car and erect and would have

pelled by electricity. Marion St. R. Co. v. escaped injury ; tbat appellee by reason of

Shaffer, 9 Ind. App. 486, 36 N. E. 861; Terre said conversation was not unconscious of the

Haute Ry. Co. v. Lauer, 21 Ind. App. 466, general progress, course, and location of said

52 N. E, 703; Citizens' St. R, Co. v. Hoffbauer, car, nor of the ordinary happenings and oc

23 Ind. App. 614, 56 N. E. 64; Frank Bird currences in and about the same, and, had he Transfer Co. v. Morrow (Ind. App.) 72 N. E. been facing to the front or watching the

189. But it contends that, because there was general progress, course, and direction and room in the front vestibule of the car upon manner in which the car was running, he

which appellee was riding, and where he could have observed the bridge before be might have been carried in safety, and bewas injured, but that there was no evidence cause of the position he took while standing as to the distance a person of ordinary eye on the footboard of the car, as a matter of sight could see the bridge before the car en law, rendered him guilty of contributory neg. tered it; that the space between the floor ligence, and he should not recover. In this of the car and the structural work of the state contributory negligence is a matter of bridge was 1334 inches, and at the time of defense (Southern Indiana Railroad Co. v. the injury the car on which appellee was a Peyton, 157 Ind. 690, 61 N. E. 722; City of passenger was moving at the rate of about Evansville v. Christy, 29 Ind. App. 44, 63 X. 12 miles per hour, and, bad appellee been E. 867) and, when so interposed to defeat an standing erect upon said running board and action for personal injury, it is necessarily neither leaning toward or from the structural one of the questions before the jury and an

ne

swered by their general verdict. This rule / question of law; if not, it is for the jury. obtains in the case at bar, and, the general | 'In the ultimate determination of the quesverdict being in favor of appellee, it is in tion,' says Beach on Contr. Neg. (3d Ed.) $ effect a finding in his favor and against 452, 'whether the plaintiff was guilty of negappellant on that issue. It is also a finding ligence, two separate inquiries are involved: against appellant and in favor of appellee First, what was ordinary care under the upon every issuable fact necessary to sus circumstances? and second, did the conduct tain appellee's cause of action, when sought of the plaintiff come up to that standard ? to be overthrown by “special facts found by With respect to the standard of ordinary care the jury in answer to interrogatories pro- it may be remarked that it is not always pounded to them.” It carries to its support a fixed standard, and in many cases it must every presumption and inference of fact first be found by the jury. In such a case which might have been drawn from the evi each of these inquiries is for the jury. They dence properly admitted under the issues, and must assume a standard, and then measure will yield only after resolving all reasonable the plaintiff's conduct by that standard.'" presumptions against such isolated facts and The complaint places the iron posts of the "one or the other is necessarily erroneous." bridge within a few inches of the car as it Albany Land Co. v. Rickel, 162 Ind. 222, 70 l entered the bridge: the distance as fou V. E. 158; City of South Bend v. Turner, 156 the jury being 1334 inches. The complaint Ind. 418, 60 N. E. 271, 54 L. R. A. 396, 83 avers an insufficient width between the iron Am. St. Rep. 200; Union Traction Co. V. posts of the bridge and the cars operated Barnett, 31 Ind. App. 467, 67 N. E. 205; Chi by appellant on that line to permit the pascago, etc., Co. v. Stephenson, 33 Ind. App. 95,

sage of passengers standing on the running 69 N. E. 270.

boards thereof. The special facts show that The law as deduced from the great number

appellee might have occupied a position of decisions cited in the case of Citizens' St.

whereby he could have avoided the collision R. Co. v. Hoffbauer, supra, clearly expresses

and injury. There were other persons standthe degree of care and diligence required

ing on the running board with appellee. We of street car companies, regarding the safety

must presume they were all there with the and protection of its patrons from danger.

knowledge and consent of appellant's employés It also announces the rule that "a passenger

in charge of the car. They were not warned has the right to presume, in the absence of

of the danger attendant by the proximity of knowledge or warning to the contrary, that

the car to the iron posts of the bridge, and all necessary precautions have been, and will

we cannot say as a matter of law, over apbe, taken for his safe transportation." From

pellee's positive denial, that because he had the doctrine declared in that case we have no

a general knowledge of the construction of reason to recede. It is true, if appellee know

the bridge, and because he had ridden over ingly exposed himself to danger such as an

the bridge in appellant's cars, that he was ordinarily prudent person under the circum

thereby possessed of such knowledge of the stances would not have done, and was there

| danger consequent on his riding on the runby injured, or if by reasonable precaution

ning board of the car as would show “a he could have foreseen the danger and avoid

plain disregard for common care and caution," ed the injury, he ought not to be allowed dam

and impute to him such negligence in case ages. City of Evansville v. Christy, supra;

of injury as would relieve appellant from Aikin v. Frankford, etc., R. Co., 142 Pa. 47, 21 Atl. 781. But these are questions, under

giving him warning of the danger of a colour jurisprudence, generally for the jury; the

Jision with the bridge posts. Whatever knowl. exceptions being where the exact standard

| edge might be inferred and attributed to him of duty is fixed, or, as said in the case of

| from these facts was a question for the jury Citizens' St. R. Co. v. Hoffbauer, supra: “If

and by them to be considered, together with they find facts which show a failure to attain

all the other facts in the case, as affecting that standard, the law declares negligence

the question of contributory negligence. Inexists. The conduct of the complaining party

diana, etc., Oil Co. v. O'Brien, 160 Ind. 266, in such cases is such as to shock the mind

274, 65 N. E. 918, 66 N. E. 742. From the of an ordinarily prudent person and shows

record it appears that appellee was a man of a plain disregard for common care and cau

average size; that his position on the car tion. In such cases a court may well say

| when the collision happened was the same that the party's conduct showed a plain and

as that by him assumed shortly after taking reckless disregard for his own safety. But

passage thereon; that he paid his fare to the a court may not declare that negligence does

conductor in charge of the car; that nothing or does not exist in any case simply because was said to him about standing between the the facts be undisputed. But the question is,

seats or in the front vestibule. There is no even though the facts be undisputed, is there evidence that appellee knew that passengers room for difference of opinion as to the in were allowed to stand in the front vestibule ferences and conclusions that may be drawn with the motorman upon occasions when the from these undisputed facts? If the infer car was otherwise crowded with passengers. ence of negligence, or its absence, necessarily There is no showing that appellee knew the follows from the undisputed facts, it is a front vestibule was not fully occupied by

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