On Petition for Rehearing.
Rabb, J.5. Appellee in its petition for rehearing earnestly insists that the court in deciding this case overlooked the point made in appellee’s brief, that the court below erred in overruling appellee’s demurrer to appellant's complaint, and that the judgment should have/been affirmed for this reason, and insists upon a decision of this question.
No cross-errors were assigned by appellee calling in question the ruling of the court below upon the demurrer to the complaint, and no error committed by the court below against appellee in ruling on the demurrer to the complaint, can be made to offset an error committed by the court against appellant in giving a peremptory instruction to the jury to 'return a verdict in appellee’s favor.
If the complaint was so defective that no amendment could make it good, this would afford proper ground for an affirmance of the judgment, but error of the court in its action upon the demurrer will not. McCole v. Loehr (1881), 79 Ind. 430; Town of Greendale v. Suit (1904), 163 Ind. 282; Davis & Rankin, etc., Mfg. Co. v. Booth (1894), 10 Ind. App. 364; Goodman v. Niblack (1880), 102 U. 8. 556, 26 L. Ed. 229.
*196. *18Appellee insists that the complaint should be construed as though the averments contained therein, descriptive of *19the surroundings at the time the accident happened, and of the speed at which it averred the car was being run at the time, were the substantive and controlling averments of the pleading, and it is contended that these descriptive averments contradict the general charge of negligence, and show the decedent to have been guilty of contributory negligence, and that for this reason the complaint was bad. This is an erroneous view.
The action was for negligence, and there is a general charge contained in the complaint that “defendant negligently * * * caused * * * an interurban car * * * to be run against and upon George W. Dieckman,” thereby killing him. The negligent running of the car is the gist of the action, and whether it ran at a speed of eighteen miles per hour, or five miles, or fifty miles, is not material, nor are the other incidental facts averred. The complaint would have been good had all the descriptive and incidental facts been stricken out, and it stood upon the general charge that appellee negligently ran its car against appellant’s decedent, thereby killing him. This would furnish the predicate for proof of all incidental facts and circumstances both of commission and omission, which would fairly tend to establish the primary fact charged, whether such incidental facts and circumstances were or were not set forth specifically in the complaint. Indianapolis St. R. Co. v. Marschke (1906), 166 Ind. 490, and authorities cited; Knoefel v. Atkins (1907), 40 Ind. App. 428, and authorities cited.
The case of Indianapolis St. R. Co. v. Marschke, supra. was an action very similar to this one, and was brought by appellee against the Indianapolis Street Railway Company, for an injury received at a public street crossing.
The complaint contained no specific averments that would bring the ease within the last clear chance doctrine, but there was, as here, a general charge of negligence, and there were, as here, specific characterizations of the act of de*20zenclant in running its ear at a -high rate of speed, and a failure to give proper signals. The court gave to the jury an instruction authorizing it to return a verdict in favor of the plaintiff, if the evidence made a case under the rule of the last clear chance. The giving of this instruction was relied upon as an error entitling defendant to a reversal.
7. The court said, in deciding this question: “It is claimed that the trial court .submitted to the jury a question which was outside of the issues, in instructing with reference to a liability based on. the hypothesis of a failure to exercise reasonable care after it became apparent to the motorman that a collision was likely to occur. This, in substance, is the doctrine of last clear chance. The complaint does, in its preliminary allegations concerning negligence, characterize as negligent a running at a high speed and a failure to sound the gong, but the averment concludes with a charge of negligence in running the car upon and against plaintiff’s buggy, thereby injuring her. We are of opinion that the complaint should not be construed on the theory that it required all of the more specific charges of negligence to be proved .to make out a case. The specific characterizations of the complaint may give a more vivid idea of the manner in which it was claimed that the accident occurred, but, after all, the whole thing, in substance, is a charge that the defendant negligently ran its car into the plaintiff’s buggy. Even at common law it was the rule that it was enough if the substance of the issue was exactly proved. * * * In such a case as this the injury caused by the wrongful act or omission of the defendant is the gravamen of the action, * * * We are of the opinion that appellee was entitled to recover if the jury found that the hypothesis which the instruction contained was maintained by the evidence. As was said in Robbins v. Diggins (1889), 78 Iowa 521, 43 N. W. 306, in considering the propriety of an instruction to the effect that *21the plaintiff must prove the allegation of negligence as laid: ‘ The defendants are liable if they negligently ran upon and injured the plaintiff. It was not necessary to show that the speed was “furious.” ’ ”
In the case of Knoefel v. Atkins, supra, it is said, speaking with reference to complaints to recover for negligence: “ It is not, generally speaking, necessary in actions for negligence that the complaint set forth the circumstances which tend to show negligence. It is sufficient to allege generally -the doing of the act that led to the injury, and that it was negligently done.” And in the same case the following is quoted, with approval, from Davis v. Guarnieri (1887), 45 Ohio St. 470, 484, 15 N. E. 350, 4 Am. St. 548: “The wrongful act complained of — the act which led to the injury — was carelessly selling and delivering to the plaintiff a -deadly poison instead of the harmless medicine he called for. * * * The allegation in a pleading that the party complained against negligently committed the particular act which led to the injury whose redress is sought, furnishes the predicate for the proof of all such incidental facts and circumstances, both of omission and commission, as fairly tend to establish the negligence of the primary fact complained of.”
8. Appellant was not required to show by the averments of her complaint that her decedent was free from negligence contributing to his injury, nor was she, required to set out in detail all the circumstances and conditions attending the accident, and the court cannot say, as a matter of law, from the facts averred in the complaint, and what might have been shown in the evidence, under the issue, that decedent was guilty of contributory negligence.
The complaint, we think, was not only sufficient to withstand attack for the first time in this court, but to withstand demurrer.
It is insisted that the court’s statement of the facts as they might have been found by the jury is not correct. We *22have again, carefully gone over the evidence as it appears in the record, and it fully justifies the statement made by the court, and upon which the decision of the court is predicated.
Petition for rehearing overruled.