Borg v. Larson

• Decision Date: 25 January 1916
• Docket Number: No. 8913.,8913.
• Citation: 111 N.E. 201,60 Ind.App. 514
• Parties: BORG v. LARSON et al.
• Court: Indiana Appellate Court

60 Ind.App. 514

111 N.E. 201

BORG

v.LARSON et al.

No. 8913.

Appellate Court of Indiana, Division No. 2.

Jan. 25, 1916.

Appeal from Superior Court, Lake County; Virgil S. Reiter, Judge.

Action by Christ L. Borg against Charles Larson and others. Judgment for defendants, and plaintiff appeals. Affirmed.

F. N. Gavit and John C. Hall, both of Whiting, for appellant. William J. Whinery, of Hammond, and John D. Kennedy of East Chicago, for appellees.

MORAN, J.

A collision occurred between appellant's motorcycle and appellee's motor delivery wagon upon one of the thoroughfares in the city of East Chicago, Ind. In an action by appellant for personal injuries, alleged to have been caused by appellees, the court, at the close of the evidence, directed a verdict in favor of appellees. The error relied upon for reversal is the overruling of appellant's motion for a new trial, which directs our attention specifically to the action of the court in giving to the jury a peremptory instruction in favor of appellees.

Briefly, the complaint discloses that on August 31, 1912, while appellant was traveling upon a motorcycle and appellees' servant was in charge of a motor delivery wagon, each going in the same direction upon 145th street in East Chicago, a collision occurred between the vehicles at a point where appellees' servant in charge of the motor delivery wagon attempted to turn into an intersecting street. It is alleged that the servant in charge of the motor delivery wagon carelessly and negligently and without warning to appellant turned sharply to the right, over and against the motorcycle upon which appellant was riding, and that appellant was violently thrown to the pavement and pushed against the curb of the street, by reason of which he was greatly injured, and as a result thereof, he became sick, sore, and lame, and will be disabled during life. Prior to the injury appellees' servant had a plain view of the street, so that he could have seen appellant in time to have avoided the injury. Appellant was 24 years of age and in good health, and capable of earning $100 per month, and by reason of the injury was damaged in the sum of $5,000.

An answer of general denial, addressed to the complaint, closed the issue, under which the evidence was adduced, and which discloses: That appellant was a car inspector, on his way to the Standard Steel Car Company's plant at Hammond; his journey brought him over and upon 145th street, over which he had traveled to his work for some four months prior to the accident. The street was paved and was about 50 feet wide, with cement sidewalks and curbing. That as he turned into this street he observed appellees' motor delivery wagon some distance ahead, both vehicles pursuing their way westward. Northcote avenue intersects with 145th street at right angles, but extends no further south. When both vehicles were in close proximity to the intersection of Northcote avenue with said street upon which they were traveling, appellant, without giving any signal attempted to pass the motor delivery wagon upon the right side, traveling at the rate of about 15 miles per hour, and the servant in charge of the motor delivery wagon was unaware of appellant's presence, and desiring to leave 145th street attempted to turn into Northcote avenue, and in doing so the motor cycle upon which appellant was riding came in contact with the right front wheel of the motor delivery wagon.

At the time there was in force in East Chicago an ordinance regulating the traffic of vehicles of all kinds upon the streets and alleys of the city, and which provided, among other things, that a vehicle overtaking another should pass on the left side of the overtaken vehicle, and a person in charge of any vehicle should as soon as practicable turn to the right to allow the overtaking vehicle to freely pass to the left, and a person upon turning a corner of any street or crossing the intersection of any street should not drive or propel a vehicle with a greater rate of speed than 8 miles per hour.

Appellant testified: That after he had followed the automobile two blocks, and was within about 75 feet of the same, he made up his mind to pass on the right side. That he was traveling faster than the vehicle...