City of Elkhart v. Jackson

• Decision Date: 14 October 1937
• Docket Number: No. 15636.,15636.
• Citation: 104 Ind.App. 136,10 N.E.2d 418
• Parties: CITY OF ELKHART v. JACKSON.
• Court: Indiana Appellate Court

104 Ind.App. 136

10 N.E.2d 418

CITY OF ELKHART

v.JACKSON.

No. 15636.

Appellate Court of Indiana, in Banc.

October 14, 1937.

Appeal from Elkhart Circuit Court; Aldo J. Simpson, Judge.

Action by Lillian J. Jackson against the City of Elkhart. Judgment for plaintiff, and defendant appeals.

Reversed, with instructions.

Hawley O. Burke, of Elkhart, for appellant.

Church & Chester and John T. Holdeman, all of Elkhart, for appellee.

KIME, Judge.

By an amended complaint in one paragraph the appellee sought damages for personal injuries she sustained when a collision occurred between an automobile in which she was riding and one driven by one Anderson a CWA worker who was using a truck owned by the City of Elkhart. The complaint was answered in general denial, which was followed by a jury trial, resulting in a verdict for the appellee and judgment thereon in the sum of $10,000. From the evidence most favorable to appellee it appears that Anderson, the driver of the automobile belonging to the City of Elkhart, was, on the 26th day of February, 1934, when the accident occurred, returning from his home where he had gone to eat his noon meal. With him were two other CWA workers, all of whom were on their way to check into the CWA timekeepers' office.

The City of Elkhart had applied for and been awarded a project whereby the federal government paid the men and the city furnished certain material for the project. These three men were engaged in the repair of the fire alarm system in the City of Elkhart and took their orders from the fire chief of said city. It was necessary that a conveyance of some sort be furnished them for the transportation of their tools to and from the location of their work. The fire chief assigned to them an old automobile to which had been attached a small truck body.

They quit work at 11:30 o'clock a. m. for lunch, and it was their duty thereafter to report to the timekeeper between 12:15 and 12:20 o'clock p. m. prior to their resuming work at 12:30 o'clock p. m. The men used this automobile to transport themselves to and from lunch, and it was while returning from their lunch that the accident in question occurred.

The appellant assigns as error the overruling of the motion for new trial, the grounds of which were that the verdict was not sustained by sufficient evidence and that it was contrary to law, and error in the giving of each instruction numbered 1, 2, 3, 4, and 6 tendered by the appellee. The appellee contends...