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The Evansville, Cairo and Memphis Steam Packet Company v. Wildman.

In other words, conceding the allegations in the fifth paragraph of the answer to be true, yet the notes executed by the minors may have ceased to be voidable before the said 15th day of August, 1867. Tested by this rule, that paragraph of the answer was bad on demurrer.

But the appellee contends, that, if there was error in overruling the demurrer to that paragraph, it was nevertheless a harmless error, as the evidence admissible under it might have been given under the general denial.

We can not, however, sustain the position thus contended for by the appellee. Infancy, when set up as a direct defence to an action, must be specially pleaded. We think the same rule ought to be applied to the defence of infancy when interposed collaterally, as in the case at bar. This conclusion seems to us to be supported both by principle and by analogy.

The error committed by the court in overruling the demurrer to the fifth paragraph of the answer appears to us, therefore, to have been a material error, and one for which the judgment will have to be reversed.

Some other questions have been discussed by counsel, but, as they may not again arise in the cause, we have not considered them.

The judgment is reversed, with costs, and the cause remanded for further proceedings.

63 370 130 381

3 370 f171 31

THE EVANSVILLE, CAIRO AND MEMPHIS STEAM PACKET
COMPANY v. WILDMAN.

NEGLIGENCE. Wilful Injury.--Action for Damages.-Complaint.-Act of
Agent, Employee, or Servant —In an action by a passenger upon a steam-
boat, against a corporation owning and operating the same, to recover

The Evansville, Cairo and Memphis Steam Packet Company v. Wildman.

damages for injuries alleged to have been suffered by him while a passenger, through the negligence of the employees of the defendant, the complaint alleged, that the plaintiff had been "violently pushed, pulled and thrown through" a hatchway negligently left open by such employees, resulting in the injuries alleged.

Held, on demurrer, that the failure of the complaint to allege that such violence was the act of the defendant's employees renders it insufficient. PRACTICE.-Trial on Complaint Containing an Insufficient Paragraph.— Verdict.-Supreme Court.-Record.—Where a demurrer has been overruled to an insufficient paragraph of a complaint, an exception reserved, and, upon trial, a general verdict found for the plaintiff, the Supreme Court, on appeal, will reverse a judgment upon the verdict, unless it appear by the record that trial was had, and such verdict found, upon some other and sufficient paragraph of the complaint.

From the Posey Circuit Court.

B. Hynes, A. Gilchrist, A. P. Hovey and G. V. Menzies, for appellant.

W. P. Edson and M. W. Pearse, for appellee.

Howк, C. J.-In this action, the appellee, as plaintiff, sued the appellant, as defendant, in the Vanderburgh Circuit Court, in a complaint of three paragraphs.

In the first paragraph of his complaint, the appellee alleged, in substance, that, before and at the time of the commission of the grievances complained of, the appellant was the owner of a certain steamboat, known as the "Arkansas Belle," and ran and operated said steamboat upon the Ohio river, between the ports of Evansville, Indiana, and Cairo, Illinois, for the transportation of freight and passengers, for hire and reward, to be paid to the appellant; that, on the 17th day of March, 1873, the appellee was at the city and port of Henderson, Kentucky, and was desirous of procuring passage for himself and his horse upon said steamboat, from said city of Henderson to the town of Mt. Vernon, Indiana; that, at said time, said steamboat was towing a certain barge, and, upon arriving at said port of Henderson, landed with said barge between said steamboat and the wharf-boat, and it became and was necessary

The Evansville, Cairo and Memphis Steam Packet Company v. Wildmar.

for the appellee to go over and across said barge, in order to reach and get upon said steamboat; that, upon the arrival of said steamboat at said port of Henderson, the appellee went upon said steamboat and informed an agent of the appellant, to wit, the clerk of said steamboat, of his wish to procure passage for himself and horse, as aforesaid, and was told by said clerk that they would be taken on board and carried to said town of Mt. Vernon; that thereupon the appellee, as a careful and prudent man, started to return to said wharf-boat, in order to have his horse brought on board of said steamboat; that, in attempting to cross said barge to said wharf-boat, through the carelessness and negligence of the appellant, its agents and servants, the hatches of said barge having been left open, and the gang-planks across said barge laid near to said open hatchway, the appellee, without any want of care or caution upon his part, was violently pushed, pulled and thrown through said open hatchway, into the hold of said barge, falling a distance of seven or more feet, by means whereof he, the appellee, was severely injured in and about his head, his ribs being broken, and being otherwise so severely injured as to render him insensible for, to wit, four hours; that, by reason of the appellant's negligence, the appellee was obliged to, and did pay out, to wit, three hundred dollars, in and about endeavoring to be cured of his said fractures, wounds and injuries, by reason of which he became and was sick, sore, etc., from said last named day up to the commencement of this action; and that, during all said time, by reason of his said bodily injuries, the appellee had suffered great bodily pain, and had been hindered and prevented from transacting his ordinary business; to his damage in the sum of five thousand dollars, for which he demanded judgment.

The second paragraph differs from the first, in that it avers that the appellant was injured in crossing the barge,

The Evansville, Cairo and Memphis Steam Packet Company v. Wildman.

without saying in what direction or for what purpose he was going, and in stating that the occurrence happened in the night time, and that there was not sufficient light upon. the barge, and also that the pushing, pulling, etc., by which appellant got into the open hatch, was by the carelessness. of defendant's servants.

The third paragraph alleges, in addition to what is stated in the first, that the occurrence was in the night time, that there was not light enough to see the open hatch, and that the violent pushing, pulling, etc., was by the negligence and carelessness of defendant's servants.

The appellant demurred separately to each of the paragraphs of the appellee's complaint, upon the ground that it did not state facts sufficient to constitute a cause of action. Before these demurrers were considered, on the appellee's application, the venue of the action was changed to the court below. In this latter court, the demurrers to the complaint were severally overruled, and to these decisions the appellant excepted, and then answered separately, by a general denial, each paragraph of the complaint.

The issues joined were tried by a jury, and a general verdiet was returned for the appellee, assessing his damages in the sum of four hundred dollars. With their general verdict, the jury also returned their special finding as to particular questions of fact submitted to them; but we need not notice these special findings, as it is not claimed that these findings were inconsistent with the general verdict.

The appellant's motion for a new trial having been overruled, and its exception saved to this decision, judgment was rendered by the court below, on the general verdict of the jury, from which judgment this appeal is now prosecuted.

In this court, the appellant has assigned, as errors, the following decisions of the court below:

The Evansville, Cairo and Memphis Steam Packet Company v. Wildman,

1. In overruling its demurrer to the first, second and third paragraphs of appellee's complaint;

2. In overruling its motion for a new trial; and,

3. In rendering judgment for the appellee, on the general verdict.

In their brief of this cause, in this court, the appellant's counsel, in discussing the first of these alleged errors, complain only of the decision of the circuit court, in overruling the appellant's demurrer to the first paragraph of the complaint. The objection urged by counsel to this paragraph of the complaint is, that, while it was alleged therein that the hatches of the barge were left open through the carelessness and negligence of the appellant, yet it was not shown therein that the appellee's injuries, of which he complained, were caused by such carelessness and negligence, or by any other negligent acts of the appellant, its agents

or servants.

It may be inferred fairly and reasonably, as it seems us, that the appellee's injuries resulted directly and proximately from the fact alleged, that he "was violently pushed, pulled and thrown through said open hatchway." By whom the appellee was thus violently pushed, pulled and thrown, he has failed to allege in the first paragraph of his complaint. It can not be assumed that these violent acts were done or committed by the appellant, or by any of its agents or employees; but, on the contrary, we think the fair presumption is, that the acts in question were done or committed by a stranger to the appellant. It is a clear proposition, that, if the alleged violent acts were done by some third person, neither an agent nor a servant of the appellant, it would not be liable in damages to the appellee for injuries resulting from those acts, even though it had been negligent in leaving such hatchway open. In our opinion, the circuit court erred in overruling the appellant's demurrer to the first paragraph of the appellee's

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