Ballard v. The Citizens' Street Railroad Company
| Decision Date | 15 September 1897 |
| Docket Number | 2,164 |
| Citation | 47 N.E. 643,18 Ind.App. 522 |
| Parties | BALLARD, ADMINISTRATRIX, v. THE CITIZENS' STREET RAILROAD COMPANY ET AL |
| Court | Indiana Appellate Court |
Rehearing denied November 24, 1897.
From the Marion Superior Court.
Reversed.
George W. Spahr, for appellant.
Will H Latta and J. B. Curtis, for appellees.
Some time during the month of January, 1894, one Jehu Ballard, while driving along West Washington street, within the corporate limits of the city of Indianapolis, and while crossing the track of the Citizens Street Railway Company, received an injury from which his death afterward resulted. The material of which the street was composed, had worn and been washed away from the rails and ties of the railway tracks, causing them to stand above the surface of the street, and a deep gutter from three and one-half to four feet deep had been worn along said street directly north of and parallel with the railway track; and while driving across the track and street, decedent's wagon was overturned and he was thrown to the ground. On account of the condition of the street, negligently allowed to become and re main so by the city of Indianapolis, and on account of the improper condition of the street railway tracks, appellant brought this action in the lower court for damages against appellees, alleging that the said decedent's death was caused by the negligence of appellees, and that decedent was without fault or negligence upon his part.
A demurrer to the complaint was overruled. Appellees both answered by general denial, and the cause being at issue was submitted to a jury and a special verdict returned by way of answers to interrogatories.
But one question is discussed by counsel. Does the verdict show that the decedent did not contribute to his injury?
Appellant's counsel do not contend but that it was as essential to a recovery for decedent's death to show his freedom from negligence as it was to establish the negligence of appellees.
An essential fact omitted from a special verdict will be considered as found against the party upon whom was the burden of proving it. Louisville, etc., R. W. Co. v. Quinn, 14 Ind.App. 554, 43 N.E. 240; Austin v. McMains, 14 Ind.App. 514, 43 N.E. 141; Becknell v. Hosier, 10 Ind.App. 5, 37 N.E. 580; Bruner, Rec., v. Brown, 139 Ind. 600, 38 N.E. 318.
It appears that the accident in which the decedent Ballard was killed, occurred between 6 and 7 o'clock p. m., and that it was so dark that a person could not see the surface of the street, nor the railroad tracks. It is also clearly found that at the point where the accident occurred upon the traveled portion of Washington street there was a gutter worn three and one-half to four feet deep, the south line of which declivity extended up to within twelve inches of the north ends of the street railway ties; that these ties were exposed, and that the street railway...
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