City of Indianapolis v. Lee

• Decision Date: 28 October 1921
• Docket Number: No. 10954.,10954.
• Citation: 76 Ind.App. 506,132 N.E. 605
• Parties: CITY OF INDIANAPOLIS v. LEE.
• Court: Indiana Appellate Court

76 Ind.App. 506

132 N.E. 605

CITY OF INDIANAPOLIS

v.LEE.

No. 10954.

Appellate Court of Indiana, Division No. 2.

Oct. 28, 1921.

Appeal from Superior Court, Marion County; Theo. J. Moll, Judge.

Action by Pearl Lee against the City of Indianapolis. Judgment for plaintiff, and defendant appeals. Affirmed.Samuel Ashby, Thomas Stevenson, and Harry E. Yockey, all of Indianapolis, for appellant.

Charles B. Clarke and Walter C. Clarke, both of Indianapolis, for appellee.

DAUSMAN, J.

The paragraph of complaint on which this cause was tried alleges:

That in the management, operation, and control of its streets, boulevards, and parks the city of Indianapolis owns and operates many automobiles and other vehicles; that on April 26, 1919, one of the vehicles so owned and operated was a large motortruck which was used for the purpose of transporting freight; that on said date the city, through its employés and agents, while acting within the scope of their authority, carelessly and negligently operated one of its automobiles along and over Hillside avenue, near Nineteenth street, in said city, at a negligent and rapid rate of speed, to wit, 30 miles per hour; that the city, through its said agents and employés, carelessly and negligently caused the automobile while being operated at said rate of speed suddenly and without warning to leave the part of the street used by vehicles, and to cross the sidewalk and to go upon the lawn for a distance of 8 or 10 feet, and to strike, collide with, and knock down the plaintiff, with great force and violence, thereby wounding her, etc.

The only answer was a general denial. A verdict was returned in the sum of $1,200. The trial court required the plaintiff to remit $600 or take a new trial. A remittitur was filed accordingly, and thereupon the motion for a new trial was overruled.

The undisputed facts, essential to this decision, are as follows:

The city of Indianapolis owned a motortruck which was used by the department of public parks. One Sam Neff was employed by the city to drive the truck. He had been so employed for a year and six months prior to the accident hereinafter described. On April 26, 1918, he was ordered by his employer to take some freight from Brookside Park to Highland place. He was executing that order when at Sixteenth street and Roosevelt avenue he came upon one Claude Merrill, who was having trouble with his automobile. Merrill's car was standing in the street, and he was cranking it and endeavoring to get the engine started, but was unable to do so. Neff stopped the truck and proceeded to help Merrill. He adjusted the carbureter on Merrill's car and started the engine. Unfortunately there is in the record but a mere fragment of the conversation between the two men. It does appear, however, that Neff offered to fix Merrill's car, and later told Merrill to drive the city truck and to follow him on Roosevelt avenue to Nineteenth street. Neff then took Merrill's car and Merrill took the city truck. The two proceeded northward, Merrill following Neff. As they thus moved along, Neff looked back at least twice to see how Merrill was coming. Just before reaching Nineteenth street one of the wheels of the truck ran into a hole or depression in the street, and thereby the truck was turned eastward- which was toward Mrs. Lee, who was walking southward. She was hit by the truck and was injured. Neff was 13 years of age. Merrill was 22 years of age, and weighed 112 pounds. The two young men resided in the neighborhood where the accident occurred, and had been acquainted with each other for a long time. Immediately after the accident the police arrested Merrill and took Mrs. Lee to a hospital; and Neff took the truck and proceeded to his destination. Neff had been instructed by his employer not to permit any other person to operate the truck without permission in writing through the department of parks.

Appellant's sole contention is that the verdict is contrary to law, for the reason that the city is not liable for Merrill's negligence, because as between him and the city the relation of master and servant did not exist. It is clear that the relation of master and servant did not...