vent people from entering upon it so as to be in a position to be injured in the operation of raising it. No case has been cited by counsel on either side bearing directly on the the statute would seem to indicate that it was intended to apply only to a defective condition existing in bridges, streets, alleys, and highways. The court has no disposition to extend its application by construction. [2] It is also claimed that the complaint is defective, in that it does not allege that appellee looked or listened for warnings of Condanger before going onto the bridge. tributory negligence in personal injury cases is wholly a matter of defense under our statute, and it is unnecessary to allege freedom from it. Section 362, Burns 1914; Evansville & Terre Haute Ry. Co. v. Berndt, 172 Ind. 697, 88 N. E. 612, and cases cited. A complaint is sufficient as against an objection of this kind unless the facts stated in the complaint affirmatively disclose the defense of contributory negligence. Scarfoss, 49 Ind. App. 334, 97 N. E. 345. Cole v. [3] Appellant further insists that the complaint does not show that the operator was acting as the agent of the city at the time he did the act complained of. Under this point it is urged that there is failure, in the first place, to show that the relation of principal and agent existed at the time of the injury, and in the second place that the complaint shows that the operator was engaged in a governmental function. Neither of these positions is well taken. The complaint alleges specifically: the public park, which lay along the shore of | fective condition of the bridge, but to preLake Michigan. This bridge, which is of the jackknife type, was so constructed that it could be raised by electric machinery from a horizontal to a vertical position, the purpose of raising being to allow boats and oth-question here presented, but the language of er water craft to pass. The bridge was operated by an agent of the city named Heise. On the date of the injury to appellee, it is alleged that he entered upon the bridge for the purpose of crossing, and that when he was about one-third across the agent of the city set the machinery in motion, and started to raise the bridge; that appellee became excited and scared on account of the danger to which he was exposed, and, in an attempt to escape therefrom, ran across to the north end, which was raised five or six feet above the approach and jumped off the end of the bridge to the approach, thus receiving the injury of which he complains. It is alleged that Heise, the city's agent, was negligent in failing to guard the south approach to the bridge or to give notice or warning that he was about to raise the bridge, and that after appellee was on the bridge, Heise, having knowledge of his presence there, negligently raised the bridge, and created the dangerous condition which caused appellee to jump from the bridge and receive the injuries stated in the complaint. It is stated in the complaint that the bridge was under the complete control of the operator, and that it could be stopped and started, raised or lowered, at any time, and when in any position; and it is charged as an act of negligence that the operator saw appellee on the bridge at the time it was being raised, and saw that he was running to the opposite end to escape therefrom, and knew that by the time he could reach the end it would be raised to such a height as to make it dangerous for him to escape at that end. It is alleged that, knowing these facts, the operator negligently failed to stop the bridge and lower it, but negligently continued to raise it. [1] The first objection urged against the sufficiency of the complaint is that it fails to allege that written notice, containing a brief description of the time, place, cause, and nature of the injury, was given to the city within 60 days thereafter, as required by section 8962, Burns 1914. This section applies to actions in damages for injury to person or property resulting from any defect in the condition of any bridge, street, alley, or highway. The injury to appellee as charged in the complaint did not result from any defective condition of the bridge, but it resulted directly from the negligence of the agent of the city in failing to use due care in the manner in which he operated the bridge. If ordinary care required that the south entrance to the bridge should have been guarded by stretching a rope or a chain across it before raising the bridge, the purpose of such "That at the time herein mentioned the said city exclusively operated and controlled the opening of and closing of said bridge, and employed and kept an operator, stationed at the south end of the bridge, whose duty it was to operate said bridge as aforesaid, and to warn and to keep off travelers from said bridge when it was about to be raised, and to protect the public from injury by reason of the operation of said bridge." Also "that the said operator of said bridge saw and knew that this plaintiff was about to enter upon the bridge at the time, but, notwithstanding this fact, the said operator" failed in the performance of his duty. The operator is in similar language referred to in other specific allegations of negligence. There can be no doubt that it was clearly stated that this operator was the same who had exclusive control of the bridge. And when he is referred to he is designated as such operator, clearly meaning the one previously mentioned as employed and kept by appellant city to operate the bridge. [4] As to the capacity in which the operator was employed it is now well settled that persons so employed by cities in Indiana are agents of the city, discharging corporate duties, and that the city is liable for their acts of negligence performed in the discharge of such duties. The most recent case reviewing the authorities on this subject is that Under the authority of that case there can be no doubt of the capacity in which the operator of the bridge was performing his duty. He was clearly a corporate agent of the city, performing a corporate duty, and not a governmental one. There was no error committed by the court in overruling the demurrer to the complaint. Under the assignment of error in overruling the motion for a new trial, appellant claims that the evidence does not sustain the verdict for. the reason that (1) the evidence shows conclusively that appellee was guilty of contributory negligence; (2) the evidence also shows that appellee was not going to the park owned and operated by the city, but that he was on his way fishing, and therefore the city owed no duty to him, except that owed to a trespasser; (3) there was no proof of notice as required by section 8962, Burns 1914; (4) the evidence shows only negligence of the operator of the bridge. state of the evidence the question of contributory negligence was one of fact for the jury, and it having decided the question, this court is without power to disturb the verdict on the evidence. Cleveland, etc., R. Co. v. Lynn, 177 Ind. 311, 95 N. E. 577, 98 N. E. 67; Chicago & Erie R. R. Co. v. Fretz, 173 Ind. 519, 90 N. E. 76; Stoy v. Louisville R. Co., 160 Ind. 144, 66 N. E. 615, and cases there cited. [10] It is also urged that the court commítted error, for which the judgment should be reversed, in admitting evidence of the use made of the public park by the city. Without dispute, the evidence shows that appellee was going fishing at the time he was injured, and that he was not on his way to visit the park for pleasure and amusement. Under this state of the evidence appellant asserts that the rights of appellee could not be enlarged or affected by the fact that the city at the time had granted concessions to 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 member of the public in the proper use of a public bridge within the city limits. It is not at all material whether the city maintained a public park across the bridge or not. The bridge was admittedly a part of the public highway within the city, and as such open to the public for highway purposes. The negligence of the operator of the bridge was imputed to the city, and it became liable for the negligent acts of its agent in the discharge of his duty. [6-9] By the general verdict the jury found against appellant on the issue of contributory negligence. It is claimed by appellant that the verdict on this issue is not sustained by the evidence. The burden of this issue was on appellant, and to maintain his contention it must appear that the evidence without dispute shows a state of facts from which the court could say, as a matter of law, that appellee was guilty of negligence. It is claimed that the evidence shows that he did not look or listen for signals or warning of danger before entering upon the bridge. There is evidence that a warning bell was sounded before the bridge was raised, and that persons present called a warning to him as he was about to go upon it. As to the warning bell there is some conflict in the evidence, and appellee testified that he was hard of hearing, and that he did not hear the bell or calls. The evidence shows that a yacht was approaching the bridge for the purpose of passing, and it is claimed by appellant that, had he looked, he could have seen its approach, and would have been warned that the bridge was about to be raised. Appellee testifies that he looked at the boats, and did not see any of them moving. Under such a that it was immaterial. [11, 12] An objection made to evidence on the ground that it is immaterial or irrelevant presents no question for review. Heap v. Parrish, 104 Ind. 36, 3 N. E. 549. In the objections made in the trial court nothing was said, showing that the evidence was of a nature to prejudice the rights of appellant. In this court appellant asserts that proof that the city recovered a considerable income from the concessions in the park was prejudicial, for the reason that the jury may have considered this fact in awarding damages to appellee, and as a result the verdict against appellant was greater than it would have been otherwise. This was not presented as an objection to the evidence in the trial court, and it cannot be considered on appeal. Indiana Improvement Co. v. Wagner et al. (1894) 138 Ind. 658, 38 N. E. 49. [13] Objection was made to certain instructions given by the court and to the refusal to give certain instructions requested. Instruction No. 11, given at the request of appellee, related to the question of damages, and informed the jury what matters were proper for their consideration in determining the damage to be awarded in case the plaintiff was entitled to recover. Among other things the court told the jury that it was proper to consider his expenses, occasioned by the injury, for doctor's services and nurses and hospital charges in his efforts to be healed. This part of the instruction is objected to on the ground that it is not applicable to the evidence, there being no evidence that appellee had the services of a nurse, or sustained any expense on that account. There was evidence, however, that appellee was in a hospital, and that his hos as was necessary under the circumstances to apprise the plaintiff that he was about to raise the bridge, having in mind such defect, if any, in plaintiff's hearing." would have been more accurate if the word This instruction is subject to criticism. It word "necessary," so as to make that part of "reasonably" had been inserted before the the instruction state that the bridge tender pital bill was $38. It may be presumed that part of this amount was paid for nurse expense, nurses being an indispensable adjunct to the modern hospital. Moreover, the enumeration of nurses along with doctor's bills and hospital charges can fairly be said to be a general enumeration of the kind of expenses proved as alleged. It is not within the range of probability that appellant was in must use such care as was reasonably necany manner injured by this instruction. [14-17] The part of instruction No. 10 to essary under the circumstances to apprise plaintiff that he was about to raise the which appellant objects is as follows: "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 a 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 acyou 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 comdence 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 careof 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 finding 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 the subject of contributory negligence. It will be observed that this instruction deals solely with the negligence of the defendant with no reference to contributory negligence on the part of plaintiff. By this instruction the court does not tell the jury that, if the operator of the bridge at the time he concluded to raise it was negligent in falling to see that the plaintiff was on the bridge in the act of crossing it, plaintiff might recover, even though he had been guilty of negligence in going on the bridge. The instruction is 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 irresponsithe 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 under the facts of this case, for the reason that the bridge tender testified that he did see appellant from the time he went upon the bridge until the accident happened. [18] Instruction No. 9, complained of, reads as follows: "If you believe from the evidence that the plaintiff was deaf and hard of hearing, at the time of his going upon the bridge, on the day of his injury, and that the bridge tender, Henry Heise, was in charge of said bridge at the time, and knew that he was deaf and hard of hear ing, then the bridge tender must use such care error. [19-21] Instruction No. 6, asked by appellee, reads as follows: "A person is not responsible for his acts done caused by the negligence of another. under sudden peril or while in imminent danger, And so in this case, even though you believe that the plaintiff might have escaped injury by running south, in trying to get off from said bridge, inis not responsible for not so doing, if you bestead of north, and jumping therefrom, still he lieve he was at the time in imminent danger, or sudden peril, caused by the negligence of the defendant." By this instruction the court invaded the ened danger and the extent to which the judgment was affected by fear. No doubt there are degrees of fear which, to a greater or less extent, affect the judgment. It is possible that a person in the immediate presence of a great and impending danger might be so overcome with fear as to loose all judg ment and discretion, but it would always be a question of fact for the jury to determine as to whether the condition which surrounded him was of such a nature as to reasonably produce such a state of mind, and whether or not such a state of mind in fact existed. It was not the province of the court to assume or to state to the jury that the fear operating on the mind of appellee was of such a nature as to deprive him entirely of judgment and discretion and to wholly relieve him of all responsibility for the consequences of his acts in attempting to escape the danger, but the jury might have been properly told that it should not impute contributory negligence to the appellee on account of any act in attempting to escape the threatened danger if it found as a fact from the evidence that the mind of appellee was deprived of all judgment and discretion on account of a reasonable fear occasioned by a danger to which he was exposed by the negligence of appellant, and that the act in question was occasioned by such want of judgment. In this case it was claimed that appellee was guilty of contributory negligence after the bridge started to raise in running across the bridge and jumping off the raised end instead of returning by the way he had entered. This question should have been left to the jury, but the court practically took it from the jury by the instruction under consideration. According to the latter part of this instruction the jury had only to find that he was at the time to be in imminent danger or sudden peril caused by the negligence of appellant in order to absolve him from contributory negligence with reference to any act done in attempting to escape. If the question had been submitted to the jury, it might have found that he retained his presence of mind and was still capable of exercising discretion notwithstanding his danger and the fear occasioned thereby; but by this instruction the court took this latter question from the jury and decided it adversely to appellant as a matter of law. An examination of the authorities cited by appellee to sustain the instruction will show that all sustain the law as announced by this opinion. In every case cited this court was asked to hold as a matter of law that the defendant in the court below was guilty of contributory negligence. In some of the cases the question decided was the sufficiency of the evidence to sustain the verdict, it being contended that contributory negligence was shown by the evidence as a matter of law. Louisville, etc., R. Co. v. Kelley, 6 Ind. App. 545, 33 N. E. 1103; Pennsylvania Co. v. McCaffrey, 139 Ind. 430, 38 N. E. 67, 29 L. R. A. 104. In the cases of Indiana, etc., Co. v. Maurer, 160 Ind. 25, 66 N. E. 156, and Lake Erie, etc., Co. v. McHenry, 10 Ind. App. 525, 37 N. E. 186, it was claimed that the answers to interrogatories showed contributory negligence as a matter of law. The case upon which appellee most strongly relies is that of Clarke v. Pennsylvania Co., 132 Ind. 199, 31 N. E. 808, 17 L. R. A. 811. An examination of the record in that case will disclose that the only question before the court was the sufficiency of the complaint to withstand a demurrer for want of facts, it being the con114 N.E.-41 tention of appellee that the facts stated in the complaint showed as a matter of law that appellant was guilty of contributory negligence. The language used in the opinion is correct when considered in the light of the question under consideration, and the same thing may be said of the language of court opinions generally dealing with this question. The question as to whether a plaintiff, acting under the influence of fear occasioned by the negligence of a defendant, is or is not guilty of contributory negligence is uniformly held to be one of fact to be determined by the jury in light of the circumstances, among which are the nature and extent of the danger and the degree to which plaintiff's mind was affected by fear and the result upon his conduct. [22] This court cannot say that this instruction did not affect the result of the trial. According to the evidence of appellee he ran about 45 feet after he felt the bridge start to rise before reaching the north end. He testified that he was scared, and other witnesses stated that he seemed scared. The evidence does not show freedom from contributory negligence so clearly and conclusively as to enable this court to say that the verdict could not have been different. The giving of instruction No. 6 constituted reversible error. Instruction No. 4, requested by appellee, states the law correctly, more especially when taken in connection with instruction No. 2 which was given. The jury could not have been misled. [23] Instruction No. 4, refused by the court, if given, would have been in conflict with instruction No. 7, which properly states the law. The instruction refused directed the jury, in effect, to find for the defendant if it appeared that the plaintiff was negligent in entering upon the bridge in an attempt to cross it. Under the doctrine of last clear chance, as stated in instruction No. 7, to the effect that if the injury to the plaintiff was immediately caused by the negligence of the bridge tender after he became aware of the dangerous situation of plaintiff and to his failure to use ordinary care to avoid injury to him, then the plaintiff was entitled to recover notwithstanding his prior negligence in entering upon the bridge. The rest of the instructions asked by appellant and refused by the court have been disposed of by what has been said in a former part of this opinion. Appellant also asserts that the damages are excessive. In view of the conclusion reached, this question need not be decided. Judgment reversed for error in giving instruction No. 6, and the court below is instructed to sustain appellant's motion for a new trial. On Petition for Rehearing. Appellant files a petition for rehearing, and questions that part of the original opin 6. BILLS AND NOTES 214-ASSIGNMENT. 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. §§ 1588, 1589; Dec. Dig. 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 upon a second trial of the cause. On the contrary, the court disapproves of these instructions. The opinion goes no further than to state that the errors contained in these instructions would not alone be deemed sufficient to warrant a reversal of the judgment. The objectionable features in instructions 9 and 11 having been pointed out, it was assumed that they would not be given in the same form upon another trial. Petition for rehearing overruled. (67 Ind. App. 47) HUBBARD v. FIRST STATE BANK OF (Appellate Court of Indiana. Dec. 19, 1916.) 1. BILLS AND NOTES 153, 155-INCOMPLETE NOTE-NEGOTIABILITY. A note, incomplete by reason of the absence of the date of execution and the name of the payee, is not negotiable under the law merchant in Indiana. [Ed. Note.-For other cases, see Bills and Notes, Cent. Dig. §§ 389, 407-410; Dec. Dig. 153, 155.] Under Burns' Ann. St. 1914, §§ 9071, 9072, making all written promises to pay money negotiable by indorsement, and providing that the assignee may recover in his own name, where a party furnished the money intended to be raised by use o fan incomplete note. he obtained a definite interest in the note which he could assign to a bank for a valuable consideration, whereby it became the real party in interest. [Ed. Note.-For other cases, see Bills and Notes, Cent. Dig. § 505; Dec. Dig. 214.] 7. PLEDGES 19 EXECUTION OF INCOMPLETE 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 obtainable within the three years the note was to run before its maturity. [Ed. Note.-For other cases, see Pledges, Cent. Dig. §§ 58-63; Dec. Dig. 19.] 8. PRINCIPAL AND SURETY CHARGE OF SURETY. 104(1) - DIS A joint maker, as surety of a note pledged as collateral security for other notes, was not discharged from liability by renewal of the notes for which his note was pledged as collateral. [Ed. Note.-For other cases, see Principal and Surety, Cent. Dig. § 186; Dec. Dig. 104(1).] 9. PRINCIPAL AND SURETY 104(1) - DISCHARGE OF SURETY-ACCOMMODATION NOTE. Where the continued use of a note as collat 2. BILLS AND NOTES 214, 363-NEGOTIA-eral security without an indorsement was withBILITY OF NOTE-STATUTES. A note, incomplete by reason of the absence of the date of execution and the name of the payee, is an instrument in writing given for the payment of money, and negotiable under Burns' Ann. St. 1914, §§ 9071, 9072, making all written promises to pay money negotiable by indorsement so as to vest the property in an assignee or bona fide holder for value. [Ed. Note.-For other cases, see Bills and Notes, Cent. Dig. §§ 505, 512, 513, 517, 790, 791, 960, 962; Dec. Dig. 214, 363.] DORSER. A bona fide holder for value of a purported bill of exchange, which does not show to whom it is payable, may sue thereon the persons who executed or indorsed it, and show by parol from whom the consideration moved, to whom the instrument was delivered, who is in fact the owner and bona fide holder, and all facts attending the execution and transfer of the instrument. [Ed. Note. For other cases, see Bills and Notes, Dec. Dig. 443(3); Evidence, Cent. Dig. §§ 1722, 1906-1911; Dec. Dig. 418.] 4. BILLS AND NOTES 489(2) - ACTION ON INCOMPLETE NOTE-EVIDENCE. In suit on a note, incomplete in that the date of execution and the name of the payee were omitted, under the pleadings that the omissions were by mistake, the date could be properly inquired into and ascertained from the evi dence. [Ed. Note. For other cases, see Bills and Notes, Cent. Dig. §§ 1588, 1589; Dec. Dig. 489 (2); Pleading, Cent. Dig. § 1325.] 5. BILLS AND NOTES 489(2)-ACTION ON INCOMPLETE NOTE-EVIDENCE, In an action against maker and indorser of an incomplete note, the complaint, alleging that the omissions were by mistake, warranted in the intention of the parties and the plan originally adopted for raising money to which a maker lent his name for the accommodation of an educational institute, the acceptance of a renewal note without the indorsement did not discharge the maker of the collateral note. [Ed. Note.-For other cases, see Principal and Surety, Cent. Dig. § 186; Dec. Dig. 104(1).] 10. PRINCIPAL AND SURETY 97 CHARGE OF SURETY. DIS A surety is relieved from his contract by dealings or arrangement between his principal and the creditor, to which he is not a party, and which constitutes a departure from the contract, which may possibly vary or enlarge his liability without his consent. [Ed. Note.-For other cases, see Principal and Surety, Cent. Dig. §§ 146-168; Dec. Dig. 97.] Appeal from Superior Court, Marion County; Charles Orbison, Judge. Suit by the First State Bank of Bourbon, Ind., against William H. Hubbard and James H. Matchett. From a judgment for plaintiff against both defendants, and for defendant Matchett on his cross-complaint against defendant Hubbard, Hubbard appeals. Judgment affirmed. Daniel Wait Howe and Geo. H. Batchelor, both of Indianapolis, for appellant. Frederick E. Matson, Edward E. Gates, and James A. Ross, all of Indianapolis, for appellees. FELT, C. J. This is a suit on a note by appellee First State Bank against appellee Matchett, and appellant Hubbard, in which the bank obtained judgment for $2,200 and For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |