The Citizens' Street Railroad Company of Indianapolis v. Stoddard. It is error to give an instruction wholly without the issues, and it will be presumed to have been harmful unless it affirmatively appears from the verdict of the jury that it did not influence them in arriving at a verdict. The jury, in answer to the first interrogatory, do not find that the appellee was injured by reason of the neglect of appellant's servants to give the statutory signals, but "by neglecting to sound proper signals." What the jury may have considered "proper signals" is not stated. What they considered "proper signals," and the signals required by the statute, may be, and in this instance probably were, entirely different. The jury may have thought it was the duty of appellant's servants to have blown the whistle for the entire eighty rods before reaching the crossing, and that when they failed to do so they "neglected to sound proper signals." I can not concur in saying that a finding that they did not give "proper signals" is equivalent to a finding that they did not give the statutory signals. I think there is error in the record, and the judgment should be reversed. Filed June 19, 1894. No. 1,118. THE CITIZENS' STREET RAILROAD COMPANY OF INDIANAPOLIS v. STODDARD. PLEADING.-Complaint.—Objection to After Verdict.-Defects Cured.— A complaint which states facts sufficient to bar another action for the same cause will be held sufficient to sustain a judgment where it is questioned after verdict, for the first time, as all intendments are then taken in favor of the pleading, and defects which might be supplied by proof will be deemed cured. The Citizens' Street Railroad Company of Indianapolis v. Stoddard. NEGLIGENCE.-Injury of Child Five Years Old.-Parent's Negligence.Proximate Cause.-Complaint.-Where a complaint alleges the negligent running down and killing of the plaintiff's five year old child by the defendant's horse car, while the child was attempting to cross the street upon a necessary errand for its sick mother, and further alleges that the child, although of bright mind, strong constitution and robust health, was too young to be rightly capable of appreciating danger, or to have proper caution and discretion, and negatives contributory negligence, it can not be adjudged as matter of law, where the complaint is questioned after verdict for the first time, that the act of the mother in sending the child upon the errand was a contributing, proximate cause of its death. SAME.-Child of Five Years Non Sui Juris.-A child five years of age is non sui juris, and incapable of contributory negligence, but chargeable with the negligence of his parents. SAME.-Parental Care.-Matters Which May Be Considered.-In such case, upon the trial, it was proper to show the physical condition of the mother in connection with her act and instructions in sending the child upon the errand, and also the age, habits, character, experience and capacity of the child, as bearing upon the question of care upon the part of the parent. SAME.-Evidence.-Res Gesto.-Declarations of the child, made ten minutes after the injury, in conversation with a physician, in an ambulance on the way to the hospital, that he was crossing the street to buy oranges for his mother when the street car mules knocked him down, were incompetent, not being part of the res gestæ. PRACTICE.-Motion to Instruct for Defendant.-Subsequent Introduction of Evidence by Defendant.-Effect of.-Previous Exceptions.-Where, upon conclusion of the evidence for the plaintiff, the defendant moves for an instruction to the jury to return a verdict for the defendant, which motion is overruled and an exception taken by the defendant, the subsequent introduction of evidence by the latter, under leave of court, operates as a withdrawal of the motion and the exception reserved to the ruling thereon, and restores to the defendant the right to question, on appeal, the correctness of rulings made in relation to the introduction of evidence by the plaintiff, as to which exception had been reserved in due course. From the Marion Superior Court. H. C. Allen, W. H. Latta and A. L. Mason, for appellant. W. J. Beckett and W. S. Doan, for appellee. The Citizens' Street Railroad Company of Indianapolis v. Stoddard. DAVIS, J.-The appellee brought this action against appellant and recovered damages in the court below for the death of his minor child, who was run over by one of appellant's street cars, and from the effects of the injuries thus received he died within a few hours after the accident. The only questions presented for our consideration relate to the rulings of the trial court in overruling appellant's motion in arrest of judgment, and for a new trial. It is alleged in the complaint that the mother of the boy was sick and confined to her bed, and that her necessities compelled her to send him on an errand across the street, along which appellant operated a street railroad, and that the cars on said line were drawn and propelled by mule power. It is insisted by counsel for appellant that the complaint is bad for the reason that it does not show want of contributory negligence. It is conceded that the general averment on that subject is controlling unless it clearly and affirmatively appears from the other facts alleged in the complaint that negligence on the part of the mother of the child contributed to the injuries sustained by the child. Evansville, etc., R. R. Co. v. Athon, 6 Ind. App. 295. The contention, however, is that the court must say, as a matter of law, from the specific averments of the facts in the complaint, that the street was a place of danger, and that the mother of the boy was in fault, under the circumstances, in sending him across the street. In other words, that such act on her part constitutes contributory negligence, which bars a recovery in this action. The rule is well settled in this State that if the complaint contains a statement of the facts sufficient to constitute a substantial cause of action, and bars another suit for the same cause of action, all intendments are taken The Citizens' Street Railroad Company of Indianapolis v. Stoddard. in favor of the pleading, and its defects, if any, such as might be supplied by proof, are cured by the verdict, and it will be treated as sufficient, on motion in arrest, or when called in question for the first time by assignment of error in this court, to uphold the judgment. Section 341, R. S. 1894; Ohio, etc., R. W. Co. v. Smith, 5 Ind. App. 560; Duffy v. Carman, 3 Ind. App. 207; Hasselman, etc., Co. v. Fry, 9 Ind. App. 393; Colchen v. Ninde, 120 Ind. 88; Old v. Mohler, 122 Ind. 594. Indulging the most liberal intendment, as we are required to do, under the authorities, we proceed to the consideration of the question whether the complaint, after verdict, is subject to the objections urged against it by counsel. In this connection, and in order to give practical effect to the rule above mentioned, it should be borne in mind that all the allegations should be construed together; that each separate and independent averment must be considered with reference to the other facts stated. When a complaint is attacked by demurrer, it is construed most strongly against the pleader, but this rule does not prevail when the attack is made for the first time by motion in arrest or by assignment of error in this court calling in question its sufficiency. Indianapolis, etc., R. R. Co. v. Petty, 30 Ind. 261. It appears from the allegations in the complaint that while the child, a boy five years of age, was crossing the street in full sight of the servant operating the car, the defendant negligently, carelessly and wrongfully drove its mules and car onto and over the boy. There is no charge of willful negligence, but the complaint does charge the act which resulted in the injury as having been carelessly and negligently done, without alleging the specific acts constituting the negligence. Ohio, etc., R. W. Co. v. Craycraft, 5 Ind. App. 335. The Citizens' Street Railroad Company of Indianapolis v. Stoddard. It is charged in this connection that the boy was of bright mind and intelligence, of strong, robust health and physical constitution, and that he was too young to be capable of rightly appreciating danger, or to have proper caution and discretion. These averments, under the decisions in this State, show that the child was non sui juris, and therefore chargeable with the negligence of his parents. Terre Haute Street R. W. Co. v. Tappenbeck, 9 Ind. App. 422, and authorities there cited. Pittsburgh, etc., R. W. Co. v. Vining's Admr., 27 Ind. 513; Indianapolis, etc., R. W. Co. v. Pitzer, 109 Ind. 179. Ordinarily the question of contributory negligence in such cases is one of fact for the jury. Huerzeler v. Central, etc., R. Co., 20 N. Y. Supp. 676; S. C. 34 N. E. Rep. 1101; Kentucky, etc., Bridge Co. v. McKinney, 9 Ind. App. 213. This rule does not apply in the case under consideration if the only inference that can be drawn from the facts stated in the complaint is that the mother was guilty of contributory negligence. Cincinnati, etc., R. W. Co. v. Grames, 8 Ind. App. 112. The question is whether it clearly and affirmatively appears on the facts alleged, under all the circumstances, taking into consideration the age, intelligence and capacity of the boy, as disclosed by the averments in the complaint; that the mother was in fault in sending him across the street, and that such act on her part contributed as a proximate cause to his injuries. Cases which impute negligence to parents who permit children of tender years to wander unattended in the vicinity of and upon railroad tracks are not controlling here unless the danger encountered by the boy was such as should have been reasonably apprehended by a prudent person in the exercise of ordinary care. City of Indianapolis v. Emmelman, 108 Ind. 530; Elliott's Roads and Streets, pp. 589, 590. |