City of Mt. Vernon v. Hoehn

53 N.E. 654, 22 Ind. App. 282, 1899 Ind. App. LEXIS 180
CourtIndiana Court of Appeals
DecidedApril 28, 1899
DocketNo. 2,828
StatusPublished
Cited by14 cases

This text of 53 N.E. 654 (City of Mt. Vernon v. Hoehn) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
City of Mt. Vernon v. Hoehn, 53 N.E. 654, 22 Ind. App. 282, 1899 Ind. App. LEXIS 180 (Ind. Ct. App. 1899).

Opinion

Comstock, J.

— Appellee, as guardian, brought this suit to recover damages for bodily injuries received by his ward, caused by the running away of a team she was driving, and its colliding with an obstruction permitted to remain in a [283]*283public street of appellant. Tbe cause was put at issue by general denial. A trial by jury resulted in a verdict and a judgment thereon in favor of appellee for $2,000.

Appellant assigns as error the overruling of its demurrer to the complaint and motion for a new trial. In support of the first alleged error, appellant argues that the complaint is insufficient (1) because the averment of notice on the part of the city of the obstruction is insufficient; (2) the negligence of the city is not shown to have been the proximate cause of appellee’s injury; (3) the complaint does not allege that the team driven by appellee was an ordinarily gentle one, such as could ordinarily be entrusted to the management and care of a girl sixteen years of age.

Upon the subject of notice, the complaint contains this averment: “That on said day [the day on which it is alleged the injury was received], and for a long time prior thereto, said Store street, on the east side thereof, and a short distance south of Fourth cross street, in said city, was, and had been, obstructed by a large mowing machine, which then and there stood in said street ten feet out from the curbing or sidewalk on said east side, so as to interfere with the travel and the passing of teams and wagons and the free and unobstructed use of said street as a public highway, of which on that day, and for a long time previous, defendant had knowledge. * * * That, as said horses arrived near said obstruction, which defendant at that time, and for a long time prior thereto, had negligently permitted to be and remain, as aforesaid, out in said Store street,” etc. These averments sufficiently aver notice to withstand a demurrer. In Broohville, etc., Co. v. Pumphrey, 59 Ind. 78, allegations that certain defects in streets had been permitted to remain out of repair for “a long time” were held to be sufficient. See, also, City of Springfield v. Doyle, 76 Ill. 202; City of Chicago v. Dalle, 115 Ill. 386, 5 N. E. 578.

In demurring, appellant admits that it knew of and permitted a dangerous obstruction to remain in a much traveled [284]*284public street for a long time prior to tbe accident. Mere uncertainty in tbe statement of the cause of action, where tbe meaning cannot be mistaken, is not ground for demurrer. Koons v. Carney, 87 Ind. 34; Louisville, etc., R. Co. v. Parks, 97 Ind. 307; Pittsburgh, etc., R. Co. v Kitley, 118 Ind. 152; Pennsylvania Co. v. Sedwick, 59 Ind. 336, 339; Sibbitt v. Stryker, 62 Ind. 45. Tbe meaning of this allegation is plain. If appellant desired a more precise Statement of tbe time tbe obstruction was permitted to remain in tbe street, it should have moved to require appellee to make tbe complaint more definite in that particular. Pittsburgh, etc., R. Co. v. Hixon, 110 Ind. 225, 228; Board, etc., v. Stock, 11 Ind. App. 167, 173, upon which appellant strongly relief are not in conflict with tbe foregoing decision. Tbe allegations of facts in tbe complaint in that case and in tbe complaint before us upon tbe question of appellant’s negligence are clearly dissimilar.

. Do the averments sufficiently show that tbe negligent-failure of appellant to remove tbe obstruction was tbe proximate cause of appellee’s injury? Beach on Oont. Negl. (2nd ed.), section 31, defines proximate cause as follows: “An act is tbe proximate cause of an event when in tbe natural order of things and under the circumstances it would necessarily produce that event; when it is tbe first power producing tbe result, tbe causa causans of tbe schoolmen.” In 16 Am. & Eng. Ency. of Law, p. 436, it is said: “A proximate cause may be defined as that cause which in natural and continuous sequence, unbroken by any efficient, intervening cause, produced tbe result complained of, and without which that result would not have occurred.”

Appellee’s complaint discloses that at tbe time of tbe accident bis ward was a girl sixteen years of age, residing some six miles from tbe city of Mt. Vernon, and that she drove to said city with a team of two horses attached to a spring wagon in which she sat; that while she was driving said team, and turning tbe same into Store street of appellant, said [285]*285team suddenly became frightened, got from under control of said ward, and ran away; that while said team was so running away, and at the time of the happening of the accident, said ward was standing up in the wagon holding the reins; that, as said ward’s team arrived near the obstruction in appellant’s street, another team of horses was passing on the west side of said street, which caused the team appellee’s ward was driving to swerve to the east, and run into the obstruction. aforesaid. Appellant contends that its negligent “failure to remove the obstruction left in its street was not the cause which in natural and continuous sequence, unbroken by any efficient, intervening cause, produced the injuries complained of, and without which that result would not have occurred; that its failure to remove such obstruction “was not the first and direct power producing the result,— the causa causans.”

The definitions above set out, which are cited by appellant, correctly state general principles. The precise question here presented is decided in Town of Fowler v. Linquist, 138 Ind. 566, 573. In that case, Howard, J., speaking for the court, said: “It is claimed that the proximate cause of the accident was not the obstruction in the street, but the frightening of the team by the stray horses, and that for this reason the complaint is bad. If the town was at fault as to the obstruction, and the obstruction was one cause of the injury, the town cannot escape responsibility because some other cause aided in bringing about the accident. See Board, etc., v. Mutchler, 137 Ind. 140,—where a horse driven in a buggy was frightened and backed off a bridge, but where the board of commissioners was held responsible for the accident for the reason that they had neglected to place guards upon the bridge. See, also, City of Grawfordsville v. Smith, 79 Ind. 308.”

The case of Burrel Tp. v. Uncapher, 117 Pa. St. 353, 11 Atl. 619, is in point. In that ease the plaintiffs, who were husband and wife, while driving along the country road, [286]*286undertook to pass an engine standing by the roadside, which frightened their horse, and they were throvm. over an embankment on the opposite side of the road, which they alleged was left by the town authorities negligently without a protecting rail to prevent mishap. We quote from the opinion as folloAA^s: “In our judgment, no question involving the distinction between proximate and remote cause arises in this case. The defendant owed a duty to the plaintiff as one of the public to keep a reasonably safe road at the place where this accident happened. If that was not done, the omission was an act of negligence on the part of the defendant, and if, in conseqtrence of that negligence, an injury was sustained by the plaintiff, the defendant is responsible in damages to the plaintiff.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

City of Indianapolis v. Willis, Administrator
194 N.E. 343 (Indiana Supreme Court, 1935)
Mayne v. Curtis
126 N.E. 699 (Indiana Court of Appeals, 1920)
Schapker v. Schwetz
105 N.E. 579 (Indiana Court of Appeals, 1914)
City of Hammond v. Jahnke
99 N.E. 39 (Indiana Supreme Court, 1912)
Evansville & Indianapolis Railroad v. Allen
73 N.E. 630 (Indiana Court of Appeals, 1905)
Central Union Telephone Co. v. Sokola
73 N.E. 143 (Indiana Court of Appeals, 1905)
Espenlaub v. Ellis
72 N.E. 527 (Indiana Court of Appeals, 1904)
City of Muncie v. Spence
71 N.E. 907 (Indiana Court of Appeals, 1904)
Cincinnati, Hamilton & Indianapolis Railroad v. Worthington
65 N.E. 557 (Indiana Court of Appeals, 1902)
City of Elwood v. Laughlin
65 N.E. 18 (Indiana Court of Appeals, 1902)
Knouff v. City of Logansport
59 N.E. 347 (Indiana Court of Appeals, 1901)
Windeler v. Rush County Fair Ass'n
59 N.E. 209 (Indiana Court of Appeals, 1901)
Indiana Natural & Illuminating Gas Co. v. Anthony
58 N.E. 868 (Indiana Court of Appeals, 1900)
City of Bluffton v. McAfee
53 N.E. 1058 (Indiana Court of Appeals, 1899)

Cite This Page — Counsel Stack

Bluebook (online)
53 N.E. 654, 22 Ind. App. 282, 1899 Ind. App. LEXIS 180, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-mt-vernon-v-hoehn-indctapp-1899.