Acme-Evans Co. v. Schnepf
| Decision Date | 29 June 1938 |
| Docket Number | 15777. |
| Citation | 15 N.E.2d 742,105 Ind.App. 475 |
| Parties | ACME-EVANS CO. v. SCHNEPF. |
| Court | Indiana Appellate Court |
Fenton Steers, Beasley & Klee, of Indianapolis, Parr, Parr & Parr, of Lebanon, and James C. Jay, of Indianapolis for appellant.
J Burdette Little and Harry C. Hendrickson, both of Indianapolis, and Rogers & Smith, of Lebanon, for appellee.
Appellee instituted this action to recover for the expenses of treatment and the loss of services of his minor son, Lawrence L. Schnepf, resulting from personal injuries sustained by reason of the alleged negligence of appellant in the operation of a motor truck at or near a street intersection in the city of Indianapolis.
The cause was submitted upon appellee's amended complaint consisting of four paragraphs and appellant's answer thereto in general denial. The fifth paragraph of complaint was withdrawn. A trial by the court and jury resulted in a verdict and judgment for appellee in the sum of $5,200. Appellant filed its motion for a new trial, assigning as reasons therefor, that the damages are excessive; error in the giving of each of certain instructions by the court upon its own motion; error in refusing to give certain instructions tendered by appellant; and error in the admission of certain testimony. The motion for a new trial was overruled, and this appeal followed, assigning as error for reversal the overruling of said motion.
The first paragraph of amended complaint alleged in substance: That Shelby street extended north and south in the city of Indianapolis, was paved, and was 40 feet in width; that two parallel street car lines occupied the center of the street, and a 6 foot sidewalk occupied each side of the street; that Shelby street was intersected by Wade street, which extended east therefrom and was 24 feet in width, paved with asphalt and brick, with a 5 foot sidewalk on each side thereof; that at the time of the accident there was a city ordinance in full force and effect which provided that the operator of any motor vehicle yield the right of way to a pedestrian crossing the roadway within the marked or unmarked crosswalk at the end of a block, except crossings where the movement of traffic was controlled by a police officer or traffic signal; that Wade street at its intersection with Shelby street was at the west end of a block and was crossed by an unmarked crosswalk 10 feet in width, which was the east sidewalk line of Shelby street; that at such place the traffic was not controlled by a police officer or traffic signal; that on December 17, 1931, at 12:10 o'clock p. m., appellee's son was walking south on said crosswalk and had reached a point south of the center of Wade street, when appellant, by its duly authorized agent, negligently and unlawfully operated a motor truck in violation of said ordinance and refused and neglected to yield the right of way to appellee's son, and by the exercise of due care could have seen and did see appellee's son, but, notwithstanding, operated and propelled said truck across the crosswalk and violently struck appellee's son, inflicting serious and permanent injuries, by reason of which appellee has been compelled to and will expend large sums of money in the treatment of such injuries and will suffer damage on account of the impairment to and the loss of the services of said child.
The second paragraph of amended complaint, in addition to the allegations contained in the first paragraph, alleged in substance: That at the time and place the truck was traveling north on Shelby street in a closely built-up and residential section of the city; that the day was clear and the pavement dry, and several school children, of which appellee's son was one, were on the sidewalk on the north side of Wade street approaching the intersection of Wade and Shelby streets; that a large number of motor vehicles were passing north and south on Shelby street; that as appellee's son was walking across Wade street at said intersection, the appellant, by its employee, was operating a motor truck north on Shelby street, and by due care could have seen and did see appellee's son crossing the street, but negligently and unlawfully operated said truck into the intersection by turning to the right on to Wade street at a greater speed than was reasonable and prudent, having regard to the conditions present, at a speed of 15 or 20 miles per hour, and thereby struck and permanently injured appellee's son.
The third paragraph of amended complaint, after describing the obstructions to the view of the driver of appellant's truck, alleged that the driver of appellant's truck turned on to Wade street without slowing the speed of the motor truck or without giving any signal or warning.
The fourth paragraph of amended complaint charged that appellee's son was walking in a southerly direction across Wade street at and near the intersection of said Shelby street therewith; that the driver of appellant's motor truck, in operating it on to Wade street, by the exercise of reasonable care, could have seen and did see the son so crossing said Wade street, but unlawfully operated the truck in a reckless and dangerous manner and struck and injured said child.
One of the reasons assigned by appellant for a new trial is the refusal of the trial court to give each of its tendered instructions, Nos. 39 and 44, which instructions read as follows:
No. 39 "If you find that plaintiff's minor son came in collision with defendant's truck at a point cast of the...
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