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the public park, which lay along the shore of, fective condition of the bridge, but to preLake Michigan. This bridge, which is of the vent people from entering upon it so as to jackknife type, was so constructed that it be in a position to be injured in the operacould be raised by electric machinery from tion of raising it. No case has been cited by a horizontal to a vertical position, the pur-counsel on either side bearing directly on the pose of raising being to allow boats and oth- question here presented, but the language of er water craft to pass. The bridge was oper- the statute would seem to indicate that it ated by an agent of the city named Heise. was intended to apply only to a defective On the date of the injury to appellee, it is condition existing in bridges, streets, alleys, alleged that he entered upon the bridge for and highways. The court has no disposition the purpose of crossing, and that when he to extend its application by construction. was about one-third across the agent of the [2] It is also claimed that the complaint city set the machinery in motion, and started is defective, in that it does not allege that to raise the bridge; that appellee became ex. appellee looked or listened for warnings of cited and scared on account of the danger to danger before going onto the bridge. Con. which he was exposed, and, in an attempt to tributory negligence in personal injury cases escape therefrom, ran across to the north is wholly a matter of defense under our statend, which was raised five or six feet above ute, and it is unnecessary to allege freedom the approach and jumped off the end of the from it. Section 362, Burns 1914; Evansbridge to the approach, thus receiving the ville & Terre Haute Ry. Co. v. Berndt, 172

A injury of which he complains. It is alleged Ind. 697, 88 N. E. 612, and cases cited. that Heise, the city's agent, was negligent complaint is sufficient as against an objecin failing to guard the south approach to tion of this kind unless the facts stated in the bridge or to give notice or warning that the complaint affirmatively disclose the de.

Cole v. he was about to raise the bridge, and that fense of contributory negligence. after appellee was on the bridge, Heise, hay- Scarfoss, 49 Ind. App. 334, 97 N. E. 345. ing knowledge of his presence there, negli

[3] Appellant further insists that the comgently raised the bridge, and created the plaint does not show that the operator was dangerous condition which caused appellee acting as the agent of the city at the time

he did the act complained of. Under this to jump from the bridge and receive the injuries stated in the complaint. It is stated first place, to show that the relation of prin.

point it is urged that there is failure, in the in the complaint that the bridge was under cipal and agent existed at the time of the inthe complete control of the operator, and that it could be stopped and started, raised plaint shows that the operator was engaged

jury, and in the second place that the comor lowered, at any time, and when in any | in position; and it is charged as an act of neg- these positions is well taken. The complaint

a governmental function. Neither of ligence that the operator saw appellee on the

alleges specifically: bridge at the time it was being raised, and saw that he was running to the opposite end city exclusively operated and controlled the

"That at the time herein mentioned the said to escape therefrom, and knew that by the opening of and closing of said bridge, and emtime he could reach the end it would be ployed and kept an operator, stationed at the raised to such a height as to make it dan- south end of the bridge, whose duty it was to

operate said bridge as aforesaid, and to warn gerous for him to escape at that end. It is and to keep off travelers from said bridge when alleged that, knowing these facts, the opera- it was about to be raised, and to protect the tor negligently failed to stop the bridge and public from injury by reason of the operation

Also “that the said operator lower it, but negligently continued to raise it. I of said bridge saw and knew that this plaintiff

[1] The first objection urged against the was about to enter upon the bridge at the time, sufficiency of the complaint is that it fails to but, notwithstanding this fact, the said operaallege that written notice, containing a brief tor” failed in the performance of his duty. description of the time, place, cause, and na The operator is in similar language reture of the injury, was given to the city ferred to in other specific allegations of negliwithin 60 days thereafter, as required by gence. There can be no doubt that it was section 8962, Burns 1914. This section ap- clearly stated that this operator was the plies to actions in damages for injury to same who had exclusive control of the bridge. person or property resulting from any defect and when he is referred to he is designated in the condition of any bridge, street, alley, as such operator, clearly meaning the one or highway. The injury to appellee as charg- previously mentioned as employed and kept ed in the complaint did not result from by appellant city to operate the bridge. any defective condition of the bridge, but it [4] As to the capacity in which the operresulted directly from the negligence of the ator was employed it is now well settled that agent of the city in failing to use due care in persons so employed by cities in Indiana are the manner in which he operated the bridge. agents of the city, discharging corporate duIf ordinary care required that the south en- ties, and that the city is liable for their acts trance to the bridge should have been guard- of negligence performed in the discharge of ed by stretching a rope or a chain across it such duties. The most recent case reviewbefore raising the bridge, the purpose of such ing the authorities on this subject is that

Under the authority of that case there can be state of the evidence the question of contribno doubt of the capacity in which the opera- utory negligence was one of fact for the jury, tor of the bridge was performing his duty. and it having decided the question, this court He was clearly a corporate agent of the city, is without power to disturb the verdict on the performing a corporate duty, and not a gov- evidence. Cleveland, etc., R. Co. v. Lynn, ernmental one.

177 Ind. 311, 95 N. E. 577, 98 N. E. 67; ChicaThere was no error committed by the court go & Erie R. R. Co. v. Fretz, 173 Ind. 519, 90 in overruling the demurrer to the complaint. N. E. 76; Stoy v. Louisville R. Co., 160 Ind.

Under the assignment of error in overrul- 144, 66 N. E. 615, and cases there cited. ing the motion for a new trial, appellant [10] It is also urged that the court comclaims that the evidence does not sustain the mitted error, for which the judgment should verdict for the reason that (1) the evidence be reversed, in admitting evidence of the shows conclusively that appellee was guilty use made of the public park by the city. of contributory negligence; (2) the evidence Without dispute, the evidence shows that apalso shows that appellee was not going to the pellee was going fishing at the time he was park owned and operated by the city, but injured, and that he was not on his way to that he was on his way fishing, and therefore visit the park for pleasure and amusement. the city owed no duty to him, except that Under this state of the evidence appellant owed to a trespasser; (3) there was no proof asserts that the rights of appellee could not of notice as required by section 8962, Burns be enlarged or affected by the fact that the 1914; (4) the evidence shows only negligence city at the time had granted concessions to of the operator of the bridge.

various persons to conduct and operate plac[5] The questions raised by points 3 and 4 es of amusement in the park, and that it was have been disposed of by what we have said deriving a revenue on that account. Upon in regard to the demurrer to the complaint. this point appellant is clearly correct. The As to the second proposition, it may be said evidence under consideration was not matethat the purpose of the appellee in going rial to plaintiff's recovery, but the only obover the bridge cannot affect his right to re- jection made to this evidence in the trial was cover, so long as it appears that he was a that it was immaterial. member of the public in the proper use of a [11, 12] An objection made to evidence on public bridge within the city limits. It is the ground that it is immaterial or irrelevant not at all material whether the city maintain presents no question for review. Heap v. ed a public park across the bridge or not. Parrish, 104 Ind. 36, 3 N. E. 549. In the The bridge was admittedly a part of the pub-objections made in the trial court nothing lic highway within the city, and as such was said, showing that the evidence was of a open to the public for highway purposes. nature to prejudice the rights of appellant. The negligence of the operator of the bridge In this court appellant asserts that proof was imputed to the city, and it became lia- that the city recovered a considerable inble for the negligent acts of its agent in the come from the concessions in the park was discharge of his duty.

prejudicial, for the reason that the jury may [6-9] By the general verdict the jury found have considered this fact in awarding damagainst appellant on the issue of contributory ages to appellee, and as a result the verdict negligence. It is claimed by appellant that against appellant was greater than it would the verdict on this issue is not sustained by have been otherwise. This was not presentthe evidence. The burden of this issue was ed as an objection to the evidence in the on appellant, and to maintain his contention trial court, and it cannot be considered on it must appear that the evidence without dis- appeal. Indiana Improvement Co. v. Wagpute shows a state of facts from which the ner et al. (1894) 138 Ind. 658, 38 N. E. 49. court could say, as a matter of law, that ap [13] Objection was made to certain inpellee was guilty of negligence. It is claim- structions given by the court and to the reed that the evidence shows that he did not fusal to give certain instructions requested. look or listen for signals or warning of dan- Instruction No. 11, given at the request of ger before entering upon the bridge. There appellee, related to the question of damages, is evidence that a warning bell was sounded and informed the jury what matters were before the bridge was raised, and that per- proper for their consideration in determining sons present called a warning to him as he the damage to be awarded in case the plainwas about to go upon it. As to the warning tiff was entitled to recover. Among other bell there is some conflict in the evidence, things the court told the jury that it was and appellee testified that he was hard of proper to consider his expenses, occasioned hearing, and that he did not hear the bell by the injury, for doctor's services and nursor calls. The evidence shows that a yacht es and hospital charges in his efforts to be was approaching the bridge for the purpose healed. This part of the instruction is obof passing, and it is claimed by appellant jected to on the ground that it is not apthat, had he looked, he could have seen its plicable to the evidence, there being no eviapproach, and would have been warned that dence that appellee had the services of a the bridge was about to be raised. Appellee nurse, or sustained any expense on that actestifies that he looked at the boats, and did count. There was evidence, however, that not see any of them moving. Under such a appellee was in a hospital, and that his hos

pital bill was $38. It may be presumed that as was necessary under the circumstances to part of this amount was paid for nurse ex- apprise the plaintiff that he was about to pense, nurses being an indispensable adjunct raise the bridge, having in mind such defect, it to the modern hospital. Moreover, the enu

any, in plaintiff's hearing." meration of nurses along with doctor's bills would have been more accurate if the word

This instruction is subject to criticism. It and hospital charges can fairly be said to be "reasonably" had been inserted before the a general enumeration of the kind of expenses proved as alleged. It is not within the word “necessary," so as to make that part of range of probability that appellant was in the instruction state that the bridge tender any manner injured by this instruction.

must use such care as was reasonably nec[14-17] The part of instruction No. 10 to essary under the circumstances to apprise which appellant objects is as follows:

plaintiff that he was about to raise the "And in this case if you shall find that there bridge, having in mind such defect in plainwas time, in the exercise of ordinary care, for tiff's hearing. However, we think that the the bridge tender to have stopped and lowered jury must have understood from the instructhe bridge, after seeing or after he was bound tion, taken as whole, that ordinary care to see, in the exercise of ordinary care, the dangerous position of plaintiff upon the bridge, if required the bridge tender to take into ac you find he was in such dangerous position, count the defective condition of appellee's and that the bridge tender failed to exercise hearing in determining what care was necsuch care to stop or lower such bridge, but con-essary and to use such care as ordinary prutinued to raise the same while the plaintiff was thereon, and injured him, as alleged in the com

dence would dictate. Jurors composed of plaint, then you are at liberty to find that the men taken from the ordinary walks of life defendant was guilty of negligence in the prem- are unable, from listening to instructions as ises."

read, to draw the fine distinctions in meanIt is claimed by appellant that this part ing which an attorney may draw when care of the instruction is not an accurate state- fully studying such instructions preparatory ment of the law governing the doctrine of the to an appeal with a view to inding some last clear chance. A proper consideration of technical defect. While the instruction is not the instruction shows that it does not at- technically accurate, there is slight probabilitempt to apply that doctrine. The last clear ty that it could have misled the jury. The chance doctrine has no place in the law ex- giving of this instruction was not reversible cept as it bears upon and affects the law on error. the subject of contributory negligence. It

(19-21] Instruction No. 6, asked by appelwill be observed that this instruction deals lee, reads as follows: solely with the negligence of the defendant "A person is not responsible for his acts dono with no reference to contributory negligence caused by the negligence of another.

under sudden peril or while in imminent danger,

And so on the part of plaintiff. By this instruction in this case, even though you believe that the the court does not tell the jury that, if the plaintiff might have escaped injury by running operator of the bridge at the time he con- south, in trying to get off from said bridge, included to raise it was negligent in failing to is not responsible for not so doing, if you be

stead of north, and jumping therefrom, still he see that the plaintiff was on the bridge in the lieve he was at the time in imminent danger, or act of crossing it, plaintiff might recover, sudden peril

, caused by the negligence of the

defendant." even though he had been guilty of negligence in going on the bridge. The instruction is

By this instruction the court invaded the therefore not open to the objection urged province of the jury by stating as a matter against it, It simply tells the jury, in sub- of law that a person is not responsible for stance, that if the operator of the bridge his acts, done under sudden peril or in imfailed to use reasonable care to observe the minent danger caused by the negligence of presence of plaintiff on the bridge, and start another. It is not proper for the court to ed to raise it while plaintiff was in the act say that a person who is put in fear for his of crossing it, it would be at liberty to find safety is thereby rendered wholly irresponsi. the defendant guilty of negligence. This is ble for his conduct; it is for the jury to deundoubtedly a correct statement of the law termine as a question of fact what ordinary so far as it goes. However, if the instruc- prudence required under the circumstances, tion were susceptible of the meaning attach taking into account the nature of the threated to it by appellant, it would be harmless ened danger and the extent to which the under the facts of this case, for the reason judgment was affected by fear. No doubt that the bridge tender testified that he did there are degrees of fear which, to a greater see appellant from the time he went upon or less extent, affect the judgment. It is posthe bridge until the accident happened.

sible that a person in the immediate pres[18] Instruction No. 9, complained of, ence of a great and impending danger might reads as follows:

be so overcome with fear as to loose all judg. "If you believe from the evidence that the ment and discretion, but it would always be plaintiff was deaf and hard of hearing, at the a question of fact for the jury to determine time of his going upon the bridge, on the day as to whether the condition which surrounded of his injury, and that the bridge tender, Henry him was of such a nature as to reasonably Heise, was in charge of said bridge at the time, and knew that he was deaf and hard of hear' produce such a state of mind, and whether

It was not the province of the court to as- tention of appellee that the facts stated in sume or to state to the jury that the fear the complaint showed as a matter of law that operating on the mind of appellee was of such appellant was guilty of contributory neglia nature as to deprive him entirely of judg- gence. The language used in the opinion ment and discretion and to wholly relieve correct when considered in the light of the him of all responsibility for the consequences question under consideration, and the same of his acts in attempting to escape the dan- thing may be said of the language of court ger, but the jury might have been properly opinions generally dealing with this question. told that it should not impute contributory The question as to whether a plaintiff, actnegligence to the appellee on account of any ing under the influence of fear occasioned by act in attempting to escape the threatened the negligence of a defendant, is or is not danger if it found as a fact from the evidence guilty of contributory negligence is uniformly that the mind of appellee was deprived of all held to be one of fact to be determined by judgment and discretion on account of a the jury in light of the circumstances, among reasonable fear occasioned by a danger to which are the nature and extent of the danwhich he was exposed by the negligence ger and the degree to which plaintiff's mind of appellant, and that the act in question was was affected by fear and the result upon his occasioned by such want of judgment. In conduct. this case it was claimed that appellee was [22] This court cannot say that this inguilty of contributory negligence after the struction did not affect the result of the bridge started to raise in running across the trial. According to the evidence of appellee bridge and jumping off the raised end in- he ran about 15 feet after he felt the bridge stead of returning by the way he had entered. start to rise before reaching the north end. This question should have been left to the jury, He testified that he was scared, and other but the court practically took it from the jury witnesses stated that he seemed scared. The by the instruction under consideration. AC-evidence does not show freedom from concording to the latter part of this instruction tributory negligence so clearly and concluthe jury had only to find that he was at the sively as to enable this court to say that the time to be in imminent danger or sudden peril verdict could not have been different. The caused by the negligence of appellant in order giving of instruction No. 6 constituted reversto absolve him from contributory negligence ible error. with reference to any act done in attempting Instruction No. 4, requested by appellee, to escape. If the question had been submit- states the law correctly, more especially ted to the jury, it might have found that he when taken in connection with instruction retained his presence of mind and was still No. 2 which was given. The jury could not capable of exercising discretion notwith have been misled. standing his danger and the fear occasioned [23] Instruction No. 4, refused by the thereby; but by this instruction the court court, if given, would have been in conflict took this latter question from the jury and with instruction No. 7, which properly states decided it adversely to appellant as a matter the law. The instruction refused directed the of law,

jury, in effect, to find for the defendant if it An examination of the authorities cited by appeared that the plaintiff was negligent in appellee to sustain the instruction will show entering upon the bridge in an attempt to that all sustain the law as announced by this cross it. Under the doctrine of last clear opinion. In every case cited this court was chance, as stated in instruction No. 7, to the asked to hold as a matter of law that the effect that if the injury to the plaintiff was defendant in the court below was guilty of immediately caused by the negligence of the contributory negligence. In some of the cas- bridge tender after he became aware of the es the question decided was the sufficiency dangerous situation of plaintiff and to his of the evidence to sustain the verdict, it being failure to use ordinary care to avoid injury contended that contributory negligence was to him, then the plaintiff was entitled to reshown by the evidence as a matter of law.cover notwithstanding his prior negligence Louisville, etc., R. Co. v. Kelley, 6 Ind. App. in entering upon the bridge. 545, 33 N. E. 1103; Pennsylvania Co. v. Mc The rest of the instructions asked by apCatfrey, 139 Ind. 430, 38 N. E. 67, 29 L. R. A. pellant and refused by the court have been 104. In the cases of Indiana, etc., Co. v. disposed of by what has been said in a former Maurer, 160 Ind. 25, 66 N. E. 156, and Lake part of this opinion. Erie, etc., Co. v. McHenry, 10 Ind. App. 525, Appellant also asserts that the damages 37 N. E. 186, it was claimed that the answers are excessive. In view of the conclusion to interrogatories showed contributory negli- reached, this question need not be decided. gence as a matter of law. The case upon Judgment reversed for error in giving inwhich appellee most strongly relies is that of struction No. 6, and the court below is inClarke v. Pennsylvania Co., 132 Ind. 199, structed to sustain appellant's motion for a 31 N. E. 808, 17 L. R. A. 311. An examination new trial. of the record in that case will disclose that the only question before the court was the

On Petition for Rehearing. sufficiency of the complaint to withstand a de Appellant files a petition for rehearing, murrer for want of facts, it being the con- I and questions that part of the original opin.

114 N.E.-41

ion which deals with instructions 9 and 11 | proof of the circumstances under which the note given at the request of appellee. It seems to

was signed and the object to be attained. be appellant's impression that the court ap-cent. Dig. $s 1588, 1589; Dec. Dig. Om 489 (2): Plead

[Ed. Note.-For other cases, see Bills and Notes, proves of the instructions referred to and ing. Cent. Dig. & 1325.] that harm would result if they were used 6. BILLS AND NOTES 214-ASSIGNMENT. upon a second trial of the cause. On the con Under Burns' Ann. St. 1914, 88 9071, 9072, trary, the court disapproves of these instruc- making all written promises to pay money netions. The opinion goes no further than to assignee may recover in his own name, where

gotiable by indorsement, and providing that the state that the errors contained in these in a party furnished the money intended to be structions would not alone be deemed suff. raised by use o fan incomplete note, he obtained cient to warrant a reversal of the judgment. a definite interest in the note which he could

assign to a bank for a valuable consideration, The objectionable features in instructions 9 whereby it became the real party in interest. and 11 having been pointed out, it was as (Ed. Note.-For other cases, see Bills and Notes, sumed that they would not be given in the Cent. Dig. $ 605; Dec. Dig. 214.] same form upon another trial.

7. PLEDGES 19 EXECUTION OF INCONPetition for rehearing overruled.

PLETE NOTE-EFFECT.

In executing a note, to be used as collateral security incomplete by omission of the date of execution and the name of the payee, the maker authorized its use as collateral security for any

loan of any amount for any period of time ob167 Ind. App. 47)

tainable within the three years the note was to

run before its maturity. HUBBARD V. FIRST STATE BANK OF

[Ed. Note.-For other cases, see Pledges, Cent. BOURBON et al. (No. 8801.)

Dig. $$ 58-63 ; Dec. Dig. 19.]

8. PRINCIPAL AND SURETY Cm104(1) - Dis(Appellate Court of Indiana. Dec. 19, 1916.) CHARGE OF SURETY,

A joint maker, as surety of a note pledged 1. BILLS AND NOTES 153, 155-INCOMPLETE as collateral security for other notes, was not NOTE-NEGOTIABILITY.

discharged from liability by renewal of the notes A note, incomplete by reason of the absence for which his note was pledged as collateral. of the date of execution and the name of the (Ed. Note.-For other cases, see Principal and payee, is not negotiable under the law merchant Surety, Cent. Dig. § 186; Dec. Dig. w104(1).] in Indiana.

9. PRINCIPAL AND SURETY 104(1) — Dis[Ed. Note.-For other cases, see Bills and Notes, CHARGE OF SURETY-ACCOMMODATION NOTE. Cent. Dig. $8 389, 407-410; Dec. Dig. 153, 155.]

Where the continued use of a note as collat2. BILLS AND NOTES Om 214, 363–NEGOTIA. eral security without an indorsement was withBILITY OF NOTE-STATUTĘS.

in the intention of the parties and the plan origA note, incomplete by reason of the absence inally adopted for raising money to which a of the date of execution and the name of the maker lent his name for the accommodation of payee, is an instrument in writing given for the an educational institute, the acceptance of a repayment of money, and negotiable under Burns' newal note without the indorsement did not disAnn. St. 1914, 88 9071, 9072, making all writ- charge the maker of the collateral note. ten promises to pay money negotiable by indorse (Ed. Note.-For other cases, see Principal and ment so as to vest the property in an assignee Surety, Cent. Dig. § 186; Dec. Dig. 101(1).] or bona fide holder for value.

10. PRINCIPAL AND SURETY 97 Dis[Ed. Note.-For other cases, see Bills and Notes, CHARGE OF SURETY. Cent. Dig. $$ 505, 512, 513, 517, 790, 791, 960, 962; Dec. A surety is relieved from his contract by Dig. Om 214, 363.]

dealings or arrangement between his principal 3. BILLS AND NOTES 443(43) – EVIDENCE and the creditor, to which he is not a party, and

418-ACTION AGAINST DRAWER OR IN- which constitutes a departure from the contract, DORSER.

which may possibly vary or enlarge his liability A bona fide holder for value of a purported without his consent. bill of exchange, which does not show to whom [Ed. Note.-For other cases, see Principal and it is payable, may sue thereon the persons who Surety, Cent. Dig. $$ 146-168 ; Dec. Dig. Ow97.] executed or indorsed it, and show by parol from whom the consideration moved, to whom the in

Appeal from Superior Court, Marion Coun-
strument was delivered, who is in fact the own- ty; Charles Orbison, Judge.
er and bona fide holder, and all facts attending Suit by the First State Bank of Bourbon,
the execution and transfer of the instrument. Ind., against William H. Hubbard and James

[Ed. Note.-For other cases, see Bills and Notes, H. Matchett. From a judgment for plaintiff
Dec. Dig. 443(3); Evidence, Cent. Dig. 1722,
1906-1911; Dec. Dig. 418.]

against both defendants, and for defendant 4. BILLS AND NOTES 489(2) ACTION ON Matchett on his cross-complaint against deINCOMPLETE NOTE-EVIDENCE.

fendant Hubbard, Hubbard appeals. Judg.
In suit on a note, incomplete in that the ment affirmed.
date of execution and the name of the payee
were omitted, under the pleadings that the omis Daniel Wait Howe and Geo. H. Batchelor,
sions were by mistake, the date could be proper- both of Indianapolis, for appellant. Fred-
ly inquired into and 'ascertained from the evi-, erick E. Matson, Edward E. Gates, and
dence.

[Ed. Note.-For other cases, see Bills and Notes, James A. Ross, all of Indianapolis, for ap-
Cent. Dig. $$ 1588, 1589; Dec. Dig. Om 189(2); Plead- pellees.
ing, Cent. Di $ 1325.]
5. BILLS AND NOTES Cw489(2)-ACTION ON
INCOMPLETE NOTE--EVIDENCE.

FELT, C. J. This is a suit on a note by In an action against maker and indorser appellee First State Bank against appeilee of an incomplete note, the complaint, alleging Matchett, and appellant Hubbard, in wbich that the omissions were by mistake, warranted' the bank obtained judgment for $2,200 and For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

1

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