Archer v. Ostemeier

• Decision Date: 02 June 1914
• Docket Number: No. 8343.,8343.
• Citation: 105 N.E. 522,56 Ind.App. 385
• Parties: ARCHER v. OSTEMEIER.
• Court: Indiana Appellate Court

56 Ind.App. 385

105 N.E. 522

ARCHER

v.OSTEMEIER.

No. 8343.

Appellate Court of Indiana, Division No. 1.

June 2, 1914.

Appeal from Circuit Court, Allen County; E. O'Rourke, Judge.

Action by Charles Ostemeier against Winfield S. Archer, and another. From a judgment for plaintiff, defendants appeal. Affirmed.

Leonard, Rose & Zollars, of Ft. Wayne, for appellants. Breen & Morris, of Ft. Wayne, for appellee.

FELT, J.

Appellee recovered judgment against appellant for $122 damages for the loss of a horse occasioned by the alleged negligence of appellant's servant, which caused a collision between appellee's team and the wagon of appellant, on a public street in the city of Ft. Wayne, Ind. The only error assigned is the overruling of appellant's motion for a new trial.

The following facts are undisputed: Columbia street, where the collision occurred, extends east and west in said city, is paved with brick, and has a single street car track in the center. On August 30, 1911, appellee's team was being driven eastward over said street, and appellant's team, drawing a large truck wagon weighing about 4,000 pounds, was being driven westward on said street. Near the place of collision another truck was standing near the north curb. Appellant's team approached said standing truck in a trot, and the driver turned it to the south far enough to bring the wheels on the left side of his wagon south of the south rail of the car track, and, after passing said standing truck, he turned the team back to the north. As he turned to the north the rear wheels of appellant's wagon skidded south and threw the rear end of the wagon against appellee's horse, and injured it substantially as alleged in the complaint. At the time of the injury appellee's team was south of the south rail of the street car track.

The substance of the negligence charged is that the appellant, by his servant and employé in charge of said team, carelessly and negligently drove his horses, with the wagon attached, at a lively rate of speed, down the center of Columbia street and along the street car track located therein; that when he met and was about to pass appellee's team, without giving any warning or decreasing the speed of his team, he suddenly, negligently, and carelessly turned to the north, and negligently, without stopping or decreasing the speed, threw said wagon against appellee's horse with such force as to break its leg; that said injury was not due to the fault or negligence of appellee; that the appellant knew, or should have known, that by turning his team in the manner aforesaid the rear end of the wagon would be suddenly thrown to the south side of the street, and would be liable to injure passing teams or vehicles; that the wagon was of such weight and the street in such a condition that the wagon could not be suddenly turned to the north without causing the end of it to swerve to the south, which fact appellant knew, or should have known; that it was negligence on the part of appellant to drive said team and wagon along the center of said street and car tracks, and, without decreasing the speed of the team, to suddenly turn it to the north, as he did in this instance.

[1][2] Appellant objects to the third instruction, given on the ground that it invaded the province of the jury by telling it what the evidence shows. Also that it told the jury the plaintiff could recover if defendant's driver was guilty of any negligence, without any reference to the degree of care required of him as a driver on a public thoroughfare. Also that the instruction is not pertinent to any evidence in the case. In the first part of the instruction the court does assume certain facts as proven, but all the facts so assumed were either agreed upon or established by undisputed evidence. Where facts are undisputed, or are of such a character that reasonable minds can draw therefrom but one inference or conclusion, it is not error to assume such facts in an instruction. Baltimore, etc., v. Keiser, 51 Ind. App. 58, 72, 94 N. E. 330;Cleveland, etc., R. Co. v. Jones, 51 Ind. App. 245, 255, 99 N. E. 503.

The concluding part of the instruction is as follows:

“I instruct you that if said Weaver was guilty of carelessness or negligence in so turning his wagon to the north, or if he attempted to get to the north side of the street car tracks in a careless or negligent manner, and as a result of such carelessness, plaintiff's horse was struck in the manner stated, and injured, and such injuries were not caused by negligence on the part of plaintiff, then defendant would be liable to the plaintiff for any damages he suffered by reason of such injury to his horse.”

The instruction does not assume to tell the jury the measure of care required by appellant's driver. In other instructions the court clearly instructed the jury as to the care required of a driver under such circumstances. The gravamen of the action was the negligence of the driver of appellant's team. There was evidence to warrant the giving of the instruction. As against the objections urged, it was a substantially correct statement of law.

[3] Objection is urged to instruction No. 5 that there was no evidence before the jury to which the instruction was applicable. The substance of the instruction is that if appellant was guilty of the negligence charged in the complaint, and such negligence was the proximate cause of the injury to appellee's horse, and appellee was not guilty of any negligence contributing to said injury, he could recover the damages he sustained by reason thereof. The evidence in substance shows, or tends to show, that appellant's team was hitched to a truck wagon weighing about 4,000 pounds, and was being driven west at about 8 miles per hour; that it was turned to the left and south of the center of the street, over the street car tracks, to pass a wagon standing at the north curb, though there was room to drive between the wagon and the north street car track; that appellee's team was going east on the south side of the street, between the curb and the south rail of the street car track, at a speed of about five miles per hour; that...