Cent. Indiana Ry. Co. v. Wishard
| Decision Date | 05 March 1915 |
| Docket Number | No. 8191.,8191. |
| Citation | 108 N.E. 35 |
| Parties | CENTRAL INDIANA RY. CO. v. WISHARD. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
On motion for rehearing. Granted, and former opinion (104 N. E. 593) withdrawn, and case transferred to Supreme Court.
This is an appeal from a judgment obtained by appellee against appellant in the sum of $5,000, damages for personal injuries from a collision of one of appellant's cars with appellee's automobile in which he was riding. The collision is alleged to have been caused by appellant's negligence.
In the trial of this case in the court below the appellant offered in evidence an ordinance of the city of Noblesville, by the provisions of which the speed of automobiles and other vehicles drawn by mechanical power and operated over the streets of said city is limited to six miles an hour. The ordinance contains the further provision that the driver of such a vehicle, when driving in one of the streets of such city, shall give a signal when approaching a street crossing.
Appellee interposed an objection to the admission of such evidence. The trial court sustained said objection, and excluded the ordinance, to which ruling the appellant saved an exception. This ruling constitutes one of the grounds of appellant's motion for a new trial. The overruling of the motion for new trial is assigned as error in this court, and the ground thereof predicated on the exclusion of such ordinance as evidence is relied on for reversal in this court.
The Supreme Court, in the recent case of Horace R. Wood Co. v. Shelton, 180 Ind. 273, 277, 101 N. E. 718, held, in effect, that in cases of this character such an ordinance was admissible as a defense of contributory negligence under the general denial.
[1][2] In its answers to interrogatories the jury found that appellee, when “he drove his automobile on the main track when he was struck, was going three or four miles an hour.” It therefore affirmatively appears from the record that appellee when injured was not, in fact, violating the speed provision of such ordinance, and hence the exclusion of the ordinance as to such provision therein was harmless. In this connection see, also, sections 10465, 10466, Burns 1914. If, however, the provision of the ordinance with reference to signals is valid, its exclusion might have been harmful to appellant and hence presents reversible error.
[3] The cause was submitted to the entire court, and it is of the opinion that it has no jurisdiction or...
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Cent. Indiana Ry Co. v. Wishard
...Company. Judgment for plaintiff, and defendant appealed to the Appellate Court, from which the case was transferred to the Supreme Court (108 N. E. 35). Judgment affirmed.U. C. Stover, of Indianapolis, and Dan Waugh, of Tipton, for appellant. Wymond J. Beckett and Wm. F. Elliott, both of In......