Henry v. Swailes , 57 Ind. App. 218 ( 1914 )

Ibach, J.

1. 2. The complaint in this case was not attacked by demurrer, but it is assigned in this court as error that it does not state facts sufficient to constitute a cause of aetion. Appellant urges the insufficiency of the complaint for the reason that there is no averment -that permission of the court to sue appellant as receiver had been obtained. Several cases are cited to the effect that a complaint against a receiver is not good against demurrer unless it contains a statement that the plaintiff had obtained permission of the court to sue. This rule seems well established. Malott v. State, ex rel. (1902), 158 Ind. 678, 64 N. E. 458. However, in the case of Elkhart Car Works Co. v. Ellis (1888), 113 Ind. 215, 15 N. E. 251, it is held specifically that where the sufficiency of a complaint against a receiver is questioned after the verdict, and it has not been first attacked by demurrer, it is too late to urge that it does not allege a permission to sue. This holding has never been overruled, or modified, and seems to us proper and just. When the receiver appears in court and defends the action, and makes no objection in the trial court that permission to sue was not first obtained, he has submitted to the jurisdiction of the court, and he has thereafter no right to object. See, also, Henry v. Epstein (1912), 50 Ind. App. 660, 95 N. E. 275.

The action is against appellant, a common carrier of passengers, for damages for personal injuries sustained when appellee, a passenger on one of appellant’s interurban ears, after alighting from said car at appellant’s station at the town of Acton, Indiana, fell into an excavation between appellant’s tracks in the public highway of Washington Street in said town.

The negligence charged consists in appellant’s leaving said excavation in said highway without guards, barriers, or lights to warn its passengers who alighted from its ear at said point of the dangerous condition of said excavation, and in failing to warn or notify appellee of said dangerous excavation.

3. The answers to interrogatories show that appellee was injured about 11:30 o’clock p. m. April 12, 1910, after alighting from one of appellant’s cars in the town of Acton, that the excavation into which she fell was about forty-five feet long, that a lighted lantern was placed on the north and one on the south side of the excavation about 5:15 o ’clock in the afternoon prior to the accident, and these lanterns were removed still burning about 7 o’clock the following morning; that appellee had taken a car at 7 o’clock the same evening within a few feet of the place where she was hurt. It is urged that these answers are sufficient to overthrow the general verdict, and show that appellant was not negligent, and appellee was guilty of contributory negligence. The answers further disclose that the excavation was near to, and extended within a foot of the west wall of a storeroom used by appellant as its station at Acton, that Washington Street ran east and west, and the excavation extended some forty or fifty feet west of the station, that the excavation had been made for the purpose of putting cinders under the crossties, that appellee alighted from the rear end of a west bound car on the north side, and that she was not familiar with conditions about the station at that time. There is no finding that any guards of any kind were about the excavation, or that the lanterns stationed on either side illuminated it to any extent, so that appellee when alighting could see the excavation, or that she had an opportunity to see the excavation when she boarded the car within a few feet from where she was hurt. We find no conflict between the answers to interrogatories and the general verdict.. Any and all apparent conflict is easily removable by evidence admissible under the issues.

4. The evidence shows that the lanterns in question were ordinary white lanterns, not red lights, that they were dirty and smoked and gave very little if any light at the place where appellee was injured, that they were situated thirty or forty feet from said place, that there were no guards or barricades of any kind about the excavation, that appellee was given no warning of any kind of the presence of the excavation, and that when she and her husband alighted from the car and started across the street and the tracks on their usual route to their home, she fell and was severely injured. Several witnesses testify to having stumbled and fallen in the same excavation the same evening. The evidence clearly is sufficient to support the jury’s finding that appellant was negligent, and appellee was not guilty of contributory negligence, which, is the effect of the general verdict for appellee.

The court did not err in overruling appellant’s motion for judgment on the answers to interrogatories, nor in overruling its motion for new trial based on the insufficiency of the evidence to sustain the verdict. Judgment affirmed.

Note. — Reported in 105 N. E. 162. As to the rights and duties of passengers in alighting from trains, see 50 Am. Rep. 277. As to the duty of street railways to provide a safe place for boarding and alighting from cars, see 1 Ann. Oas. 916; 9 Ann. Cas. 854. See, also, under (1, 2) 84 Cyc. 439; (3) 38 Cyc. 1927; (4) 6 Cyc. 1915 Ann. 632-New.