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ance due of $4,121.72 with accrued interest. Appellant sought by counterclaim to recover damages for inferior workmanship, material, and special damages resulting from leakage by reason of defective workmanship on the roof of said building, and, by way of set-off, to recover liquidated damages for failure to complete the work within the period fixed by the terms of the contract for said remodeling, and for money expended at appellee's special instance and request. Appellant's motion to strike out parts of the complaint and his demurrer to the complaint were each overruled. There was a trial by the court, which resulted in a finding for appellee in the sum of $3,064.33 and $450 attorney's fees, making a total of $3,514.33, and that appellee has and holds a mechanic's lien therefor, including costs against the leasehold interest of appellant, on which finding there was a judgment for appellee for said amount, and for a foreclosure of the mechanic's lien with an order of sale of the leasehold interest.

Errors relied upon for reversal are the errors of the court (1) in overruling appellant's motion to strike out parts of the complaint; (2) in overruling appellant's demurrer to the complaint; (3) in overruling appellant's motion for a new trial; (4) in overruling appellant's motion to modify and correct the judgment.

[1] Appellant, presenting errors of the court, as we assume both in overruling his motion to strike out parts of the complaint and in overruling his demurrer to the complaint, says that the lease to appellant prevented the enforcement of any mechanic's lien on the part of appellee. But we do not so interpret it. As we read the lease, it prohibits the enforcement of any mechanic's lien "against said real estate or the buildings or improvements erected thereon." This pro vision of the lease, which clearly was for the protection of the lessor, and not appellant, could not affect appellee's right to a mechanic's lien on appellant's leasehold interest, which rights of appellee would not in any way be a trespass on the lessor's rights.

[2] Appellant says that the notice to hold a lien was not filed within 60 days of the contract date for the completion of the work. But the statute, section 9833, Burns' 1926, provides that the notice may be filed "at any time within 60 days after performing such labor or furnishing such materials." The

notice was filed within the statutory time. The notice described the real estate upon which appellee had performed his work and furnished the material, but it did not specify that a lien was intended only on appellant's leasehold interest therein. The complaint so averred. This was sufficient to cover appellant's interest therein.

[3] Appellee had a right of action to foreclose a mechanic's lien. Such actions are not triable by a jury. Albrecht v. Foster, 126 Ind. 318, 26 N. E. 157; Reichert v. Krass, 13 Ind. App. 348, 40 N. E. 706, 41 N. E. 835.

[4-6] Under his motion for a new trial, appellant contends that the recovery is excessive because attorney's fees are included. The statute provides for the recovery of such fees. Section 9837, Burns' 1926. Appellant also contends that the recovery is excessive because he should recover liquidated damages for delay in completing the work according to contract. There was a controversy in the evidence as to these matters, and the court decided it against the appellant's contention. We will not weigh the evidence. Numerous questions and answers, with appellant's ob jection to their admission or exclusion, appear in appellant's motion for a new trial as set out in appellant's brief, and, having read them as they there appear, we are of the opinion that even if the alleged errors with reference thereto were properly presented, no reversible error would be presented; but these questions and answers, objections thereto, or exceptions to the ruling of the court, do not appear elsewhere in appellant's brief. Rule 22 of the Supreme Court and of this court expressly requires that the appellant's brief shall contain a concise statement of so much of the record as presents the errors relied upon. Failure to comply with this rule waives the error assigned. It is not sufficient that such questions and answers, objections thereto, and exceptions, appear only in the motion for a new trial. Huber Mfg. Co. v. Blessing, 51 Ind. App. 89, 99 N. E. 132; Harrold v. Fuenfstueck, 31 Ind. App. 275, 67 N. E. 699.

[7] The court will not go beyond appellant's brief in quest of error to reverse the judgment below. Huber Mfg. Co. v. Blessing, supra; Judy v. Woods, 51 Ind. App. 325, 99 N. E. 792.

We do not therefore consider these alleged errors. No reversible error is presented. Judgment affirmed.

(161 N.E.)

Beasley, Douthitt, Crawford & Beasley and TERRE HAUTE, I. & E. TRACTION CO. v. Homer B. Aikman, all of Terre Haute, and EVANS. (No. 12865.) W. Bert Conley, of Newport, for appellant. George W. Wells, of Terre Haute, Sunkel &

Appellate Court of Indiana, in Banc. April 5, Carithers, of Newport, and Duvall & Whit

1928.

1. Carriers 303 (3)-Motorman stopping to permit passengers to alight may assume that passing automobilist will comply with statute (Acts 1917, c. 106).

If the width of a street is sufficient, the motorman of a street car in opening door to permit passengers to alight has the right to assume, in absence of knowledge to contrary, that in compliance with Acts 1917, c. 106, automobilist would pass street car at a lateral distance of not less than 20 feet.

2. Carriers 303(3)-Motorman stopping car for passengers to alight may assume that automobilist will stop if unable to pass in compliance with statute (Acts 1917, c. 106).

If width of street is such as to make it impossible for an automobile to pass street car at lateral distance of not less than 20 feet in compliance with Acts 1917, c. 106, motorman stopping car to permit passengers to alight has right to assume, in absence of knowledge to contrary, that automobilist will stop while passengers are alighting from car.

3. Carriers 303 (6)-Duties owing by street railways to passengers alighting are not same as those of railroads.

Since street railway companies operate cars on tracks laid in streets and have no control over highways or traffic thereon, duties owing by street railways to passengers alighting from their cars are not the same as are duties of those commercial railroads which operate their cars and discharge their passengers on their own rights of way, over which they have complete control.

4. Carriers 303 (7)-Generally, street railway holds no duty to warn alighting passengers of obvious dangers arising from automobiles.

Generally, a street railway company owes no duty to warn or protect passengers while leaving the car from obvious dangers arising from automobiles which are being operated in the street.

5. Carriers 303 (7)-Motorman held not, under the facts, to have owed duty to alighting passenger to warn him of approaching automobile which struck and killed passenger.

Motorman of street car keld not, under the facts, to have owed duty to warn passenger, in full possession of his faculties, alighting from street car at customary place to discharge passengers, or the approach of automobile which struck and killed such passenger, and hence street railway was not liable for such death.

Appeal from Vermillion Circuit Court; William C. Wait, Judge.

Action by David Evans against the Terre Haute, Indianapolis & Eastern Traction Company and another. Judgment for plaintiff, and named defendant appeals. Reversed.

aker, of Terre Haute, for appellee.

REMY, C. J. On October 25, 1921, minor son of appellee was a passenger on one of appellant's traction cars which at the time was being operated by electric power northward upon tracks laid in Nineteenth street in the city of Terre Haute. The car was of the type known as a "one-man" car, and was in sole charge of the motorman, whose station was near the door which formed the exit of the car. It being the desire of Evans to alight from the car at the intersection of Nineteenth street with a street of the city named and known as Beech street, he so informed the motorman. Upon arrival of the car at the Beech street intersection, the motorman stopped the car and opened the door, which was on the east side, in order that Evans Whereupon Evans passed might alight. through the door, down the steps, and alighted upon the street pavement. At the time the from the car, an automobile operated by door was opened, and as Evans was alighting Charles H. Pierce was approaching the traction car along and upon the east side of Nineteenth street from the north at a high and dangerous rate of speed.

The motorman saw the automobile ap proaching, but failed to warn Evans thereof. Evans alighted from the car and was going to pass to the east curb, but before he could do so he was struck by the automobile and killed. Thereafter this action was commenced by appellee against appellant and Pierce to recover damages for the loss of the services of the deceased son of appellee. The complaint is in a single paragraph; the charge against the traction company being the alleged negligence of the motorman in failing to warn Evans of the approaching automobile, and in permitting him to leave the car and alight therefrom at the time. The negligence alleged against Pierce is that he was, at the time, operating the automobile on the wrong side of the street at a high rate of speed, and without giving any signal of his approach to the traction car. The specific averments of the complaint charging the traction company with negligence are that

The motorman "carelessly and negligently opened the door and invited said Byron Evans to alight from its car at a time when said automobile was approaching from the north on the east side of Nineteenth street at said dangerous and high rate of speed as aforesaid; that Byron Evans had no notice or knowledge of the approach of said automobile, and his attention was attracted to getting off the car; and that said defendant's motorman, so in charge of the car, then and there carelessly and negligently failed

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

and refused to give said Evans any notice or warning of the approach of said automobile before he alighted from said street car in front of and in the path of said automobile."

The traction company filed its separate motion to require plaintiff to make his complaint more specific by alleging facts upon which he based the conclusion that the motorman failed to give Byron Evans any warning of the approach of the automobile. The motion having been overruled, the traction company filed separate demurrer to the complaint. In the memorandum filed with the demurrer, it is asserted that the complaint is insufficient to state a cause of action against the traction company for the reason that no facts are pleaded to show that there was any duty resting upon the company to give plaintiff's son any warning of the approach of the automobile, and no facts to show that the automobile was not in plain view of such passenger at the time he was alighting from the car; and that no facts are pleaded showing that the alleged negligence of the motorman in failing to give the warning was the proximate cause of the accident. Demurrer was overruled, and a reply in denial closed the issues. Trial resulted in a verdict and judgment for appellee, plaintiff below, and against both defendants. Only the traction company appeals.

The only error assigned which will require consideration is the action of the court in overruling demurrer to complaint.

It appears from the complaint that the street car was stopped by the motorman at the request of appellee's decedent, at a place where it was customary to discharge passengers. There is no averment in the complaint, and there was no contention at the trial, that there was any defect in the street pavement at that point. It is specially averred that appellee's decedent was an able-bodied young man, 19 years of age, and in full possession of his faculties.

[1, 2] At the time appellee's son lost his life, as averred in the complaint, there was in full force a statute making it unlawful for the operator of a motor vehicle to pass a street car at a lateral distance of less than 20 feet, on the streets of any town or city of this state, when such car had been stopped to permit passengers to alight. Acts 1917, c. 106, p. 337. Facts are not averred as to the width of the street, and no facts are set forth which show that the motorman in charge of the street car had knowledge at the time that Pierce, in the operation of the automobile, would violate the statute. If the width of the street was sufficient, the motorman had the right to assume, in the absence of knowledge to the contrary, that, in compliance with the law, Pierce with his automobile would pass to the east of the street car a distance of 20 feet; if the width of the street was such as to make it impossible for the automobile so to pass, the motor

man had a right to assume, in the absence of knowledge to the contrary, that Pierce would stop his automobile while passengers were alighting from the car. Louisville, etc., Tract. Co. v. Lottich (1915) 59 Ind. App. 426, 432, 106 N. E. 903;. Cole Motor Car Co. v. Ludorf (1914) 61 Ind. App. 119, 111 N. E. 447; Elgin Dairy Co. v. Sheperd (1915) 183 Ind. 466, 108 N. E. 234.

[3] Street railway companies operate their cars on tracks laid in streets, and use the streets in common with other vehicles; they have no control over such highways or the traffic thereon. It follows, therefore, that the duties owing by street railways to passengers alighting from their cars are not the same as are the duties of those commercial railroads which operate their cars and discharge passengers on their own rights of way over which they have complete control. Creamer v. West End St. R. Co. (1892) 156 Mass. 320, 31 N. E. 391, 16 L. R. A. 490, 32 Am. St. Rep. 456; Hayes v. United R., etc., Co. (1915) 124 Md. 687, 93 A. 226.

In the light of the legal principles stated, can it be said that, under the facts averred in the complaint, it was the duty of appellant's motorman to warn appellee's son of the approach of the automobile? If so, the judgment must be affirmed; otherwise, reversed.

[4] The general rule, supported by the great weight of authority, is that a street railway company owes no duty to warn or protect passengers, while leaving the car, from obvious dangers arising from automobiles which are being operated in the street. There is, perhaps, no better way to discuss the reasons for the rule than to review some of the authorities which support it. Our excuse for quoting at length from some of these authorities is that they are from other jurisdictions, and are not, therefore, of easy access to many members of the profession in this state.

Oddy v. West End St. R Co. (1901) 178 Mass. 341, 59 N. E. 1027, 86 Am. St. Rep. 482, was an action against a street railway company to recover damages for injuries received by a passenger struck by a rapidly moving hose wagon, while he was in the act of leaving the street car on which he had taken passage. The Supreme Court of Massachusetts in the course of its opinion stated the law to be:

"Street car companies carrying passengers in ordinary public streets or highways are not negligent in not providing means for warning passengers about to leave a car of the danger of colliding with or of being run over by other vehicles in the street. The risk of being hurt by such vehicles is the risk of the passenger and not that of the carrier. It is not a danger against which the carrier is bound to protect the passenger or to give him warning."

A case in many respects similar to the case at bar is Ruddy v. Ingebret (1925) 164 Minn. 40, 204 N. W. 630, 44 A. L. R. 159. A passenger while in the act of alighting from a street

(161 N.E.)

car was struck and injured by a motor truck which was being operated in the street. There, as here, the action was against both the street car company and the operator of the truck. In discussing the law applicable to the facts of the case, the court, among other things, said:

"The statute requires the driver of the truck to stop not less than '10 feet behind said street car.' The Legislature did not make the statute for rear gates only. It applies equally to the front exit doors. It was intended to avoid the peril incident to vehicles being near the exits. The vehicle must be stopped 'behind said street car,' not behind the exit, hence the vehicle must avoid being alongside the street car when it stops to allow passengers to alight. The violation of this statute is a misdemeanor. * The street car is equipped with a mirror by which the motorman can see the rear gates in order that he may know that he may safely close the same. It is the claim of plaintiffs that defendant is charged with the duty of protecting the alighting passenger from danger from vehicles and that by use of the mirror the motorman should look for automobiles along the side of the car and operate the street car so that a passenger stepping onto the street will not be subjected to this danger. But this is an obvious danger incident to all streets. It is a peril known to all passengers. The danger may come without warning, and, as in this case, it usually results from a violation of the statutory prohibition. * It would, under the circumstances, be impracticable to require the company to take the responsibility of protection against these obvious dangers of the street. The motorman has no way of knowing when a driver will instantaneously become a wrongdoer. *

* *

The company is not the creator

of these conditions or street dangers and they are beyond its control. To say that its duty requires it to protect the passenger from them is, in effect, to make it an absolute insurer of safety to the passenger."

In discussing the same question, the Supreme Court of Nebraska, in Jacobson v. Omaha & St. B. R. Co. (1922) 109 Neb. 356, 191 N. W. 327, 31 A. L. R. 563, used the following language:

"Were it [the street car company] to take every possible precaution conceivable for the safety of its passengers, and were they allowed to depend entirely upon the precaution taken by the company, the company would be so engrossed with the care of its passengers and the protection of itself against liability that its practical performance as a transportation company would be seriously impaired. A street railway company is compelled to deliver its passengers upon the public streets. It cannot control nor secure absolute safety as to its landing places. The street is not under its control and its right to operate vehicles on the street is not paramount to the rights of other persons to do the same thing. It has no control over the condition of the roadway, nor can it control the traffic."

The Ohio Court of Appeals, in Cleveland, etc., R. Co. v. Arrison (1926) 159 N. E. 580, a case almost identical with the instant case, 161 N.E.-43

holds that a street car company is not required to warn a passenger, who is about to alight from a street car, of possible danger of collision with passing automobiles. In deciding the case, the court among other things says: "We are familiar with the rules laid down by this court and others that the railroad company owes a duty to stop its car in a safe place for the passengers to alight, and that, if it fails to do so, and the passenger is injured while getting off or on the car, the railroad company is responsible, but we do not conceive it yet to be the duty of the operators of street railroads to notify passengers that somebody on the street is likely to violate the rules of the road and the law in coming down on the wrong side of the street and of his keeping too close to the street car."

To the same effect, see Reining v. Northern Ohio Trac., etc., Co. (1923) 107 Ohio St. 528, 140 N. E. 84; Carrigan v. Minneapolis, etc., R. Co. (1915) 171 Iowa, 723, 151 N. W. 1091;

Chesley v. Waterloo, etc., R. Co. (1920) 188 Iowa, 1004, 176 N. W. 961, 12 A. L. R. 1366; Powers v. Connecticut Co. (1910) 82 Conn. 665, 74 A. 931, 26 L. R. A. (N. S.) 405; Scanlon v. Philadelphia Rapid Trans. Co. (1904) 208 Pa. 195, 57 A. 521; Ellis v. Hamilton St. R. Co. (1920) 48 Ont. Law R. 318, 11 B. R. C. 250, 57 D. L. R. 33.

In support of his contention, appellee cites Wood v. North Carolina, etc., Corp. (1917) 174 N. C. 697, 94 S. E. 459, 1 A. L. R. 942, and Loggins v. Southern Pub., etc., Co. (1921) 181 N. C. 221, 106 S. E. 822. These decisions, both by the same court, are not in harmony with the weight of authority; besides, each is by a divided court; in the former there is a strong dissenting opinion. Appellee also cites and relies on Ft. Wayne, etc., Trac. Co. v. Kumb (1917) 64 Ind. App. 529, 116 N. E. 309. In that case the passenger was a deafmute, was unacquainted with the method of receiving and discharging street car passengers, and because of her physical infirmity she looked to the motorman in charge of the car "for guidance and assistance in leaving the car." Thereupon, the motorman "beckoned to" the passenger and directed her to get off at the front door of the car, which was in violation of a rule promulgated by the company which required all passengers to leave at the rear door. The passenger, in compliance with the motorman's direction, got out of the car at the front entrance, and, on alighting upon the street, was struck and injured by a passing automobile. It is averred in the complaint that if the passenger had alighted from the car at the rear door she would have done so in safety. Because of passenger's physical infirmity, coupled with the unusual circumstances, that case is distinguishable from the case at bar.

[5] In harmony with the foregoing authorities, and in accordance with the general rule, we hold that, under the facts as averred in the complaint, no duty rested upon appellant

to warn appellee's son of the approach of the automobile which at the time was being operated by Pierce, and that the trial court erred in overruling the demurrer to the complaint.

Reversed.

DAUSMAN, J. absent.

CITY OF GARY v. ROPER. (No. 13084.) Appellate Court of Indiana, in Banc. June 7, 1928.

1. Municipal corporations 511(1)-Appeal may be taken from judgment reducing assessment by city for sewer, involving question of jurisdiction.

Appeal may be taken from judgment reducing amount of assessment by municipality for construction of sewer, involving question of jurisdiction of trial court, though by statute there is no right to determine case on its merits. 2. Municipal corporations 511(2)-Law authorizing appraisers to ascertain reduction of assessment held superseded by law providing for determination thereof by court (Burns' Ann. St. 1926, §§ 10344 et seq., 10347, 10569). Burns' Ann. St. 1926, § 10569, authorizing ascertainment of reduction of assessment by appraiser, held superseded as to methods of taking appeal and as to procedure of appeal by sections 10344 et seq.; section 10347 providing that such diminution, if any, be determined by the court. 3. Pleading 72-Pleading, if otherwise sufficient, is not objectionable, although having no prayer for relief.

Prayer for relief is no part of pleading which, if otherwise sufficient, is not objectionable, although it has no prayer for relief.

4. Pleading 72-Prayer for wrong relief does not vitiate pleading.

The mere fact that a pleading asks for the wrong relief does not vitiate it.

5. Limitation of actions 127(3)-Amended complaint for reduction of assessment, seek ing only different method of relief, related back to original filing, and hence was not dismissible because not timely filed (Burns' Ann. St. 1926, §§ 10347, 10569).

Where amended complaint on appeal from confirmation of assessment roll merely asked that court determine diminution, if any, in accordance with Burns' Ann. St. 1926, § 10347, as opposed to request in original complaint for appointment of appraisers to ascertain benefits as provided in section 10569, the original complaint was sufficient, and amended complaint containing same averments as to facts in original did not state a new cause of action and related back to time of filing original complaint, and hence action was not dismissible because not filed within time required by statute concerning such appeal.

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NICHOLS, C. J. The board of public works of the city of Gary, on July 19, 1926, after proper preliminary procedure, confirmed an assessment roll for the construction of a sewer in said city. Appellee prosecuted an appeal therefrom to the court below, which resulted in a judgment reducing the amount of the assessment against appellee's land for the improvement in question. Appellant questioned the jurisdiction of the trial court, and again raises the jurisdictional question in its appeal to this court.

[1] Appellee's motion to dismiss the appeal has heretofore been presented to this court and overruled as to the second ground, to wit, that the appeal had been prayed to the Supreme Court instead of to this court, 159 N. E. 554, and postponed to final hearing as to the first ground to wit, that this is an attempted appeal from a judgment in a matter where by express provision of the statute no appeal can be prosecuted. The motion is now overruled as to such first ground. This ruling is on the authority of City of Peru v. Kreutzer, 86 Ind. App. 420, 153 N. E. 420, 155 N. E. 515. This authority is vigorously challenged by appellee, but there was a petition to transfer that cause to the Supreme Court which was denied, and the decision may now be regarded as the law of this state, except as modified, not in result, in Murdick v. City of Muncie (Ind. App.) 159 N. E. 432, decided at this term, on a question not here involved. There is a right of appeal to determine a jurisdictional question, though by statute there be no such right to determine the case upon its merits.

Appellee owns land which, as appears above, was assessed by the board of public works of Gary, for a sewer construction. and, from the overruling of his remonstrance as to the amount of benefits, he appealed to the Lake superior court by filing a complaint on July 26, 1926, being within the period provided by sections 10344 et seq., Burns' 1926.

[2] By this complaint he alleged the facts and sought a reduction of the assessment,

but he asked that this diminution be ascertained by appraisers, as provided in section 10569, Burns' 1926, which section this court concludes has been superseded as to methods

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