Cole Motor Car Co. v. Ludorff

• Decision Date: 17 February 1916
• Docket Number: No. 8971.,8971.
• Citation: 61 Ind.App. 119,111 N.E. 447
• Parties: COLE MOTOR CAR CO. v. LUDORFF.
• Court: Indiana Appellate Court

61 Ind.App. 119

111 N.E. 447

COLE MOTOR CAR CO.

v.LUDORFF.

No. 8971.

Appellate Court of Indiana, Division No. 1.

Feb. 17, 1916.

Appeal from Circuit Court, Morgan County; Nathan A. Whitaker, Judge.

Action by Lillie Ludorff against the Cole Motor Car Company. Judgment for plaintiff, and defendant appeals. Affirmed.Elam, Fesler & Elam, of Indianapolis, and S. C. Kivett, of Martinsville, for appellant. Ephriam Inman, of Indianapolis, Alford M. Bain and Emmett F. Branch, both of Martinsville, and Urban C. Stover, of Indianapolis, for appellee.

FELT, P. J.

This is a suit for damages for personal injuries alleged to have been received by appellee on account of one of appellant's employés negligently driving an automobile upon and over appellee on one of the streets of the city of Indianapolis. Issues were formed by a complaint and an answer of general denial. The jury found for appellee, and with the general verdict returned answers to interrogatories. From a judgment on the general verdict, appellant has appealed and assigned as error the overruling of its motion for judgment on the answers of the jury to the interrogatories notwithstanding the general verdict and the overruling of its motion for a new trial.

Omitting formal allegations, the gist of the complaint is that appellant employed one McGinnis as a test car driver, and on November 7, 1912, at the junction of Virginia avenue, Pine and Noble streets, in the city of Indianapolis, appellee attempted to walk across to the south side of the avenue, and used due care for her own safety while so doing; that said McGinnis negligently drove an automobile at a speed of more than 15 miles per hour, to wit, 20 miles per hour, without sounding any horn or giving any signal of his approach, and negligently and recklessly drove said automobile against appellee, knocked her down, and severely and permanently injured her.

The answers to the interrogatories, in substance, show that shortly before the accident appellee was standing on the sidewalk near the curb along Virginia avenue and about 8 feet southeast of the intersection of the south curb on Pine street; that she started to walk across the avenue in a northeasterly direction, and proceeded about 16 feet when she was struck; that after she started across the street she did not look southeast along the avenue for the approach of vehicles, and did not see the automobile that injured her until the instant she was struck; that the automobile that struck appellee came along the avenue a distance of two squares before it struck her; that she was on the sidewalk near the place where she was injured while the automobile was traveling a distance of about two squares along the avenue, and, if she “had looked with reasonable care,” she could not “have seen the automobile which struck her while it was traveling a space of more than one square before it struck her”; that, if she had looked and seen the automobile a square before it reached her, she could have avoided the accident; that the automobile was about 150 feet from her when she stepped from the sidewalk into the street, and there was nothing to prevent her from seeing it; that she was at that time about 44 years of age, had good eyesight, and was familiar with the manner in which the streets of Indianapolis are used by automobiles and other vehicles.

[1] In passing on a motion for judgment on the answers of the jury to the interrogatories notwithstanding the general verdict, we can only consider the issues, the general verdict, and the answers to the interrogatories.

[2] The general verdict finds every material, issuable fact in favor of the prevailing party, and all reasonable presumptions are in its favor as against the answers of the jury to the interrogatories.

[3] Contradictory answers to interrogatories neutralize each other, and cannot overcome the general verdict.

[4] A motion for judgment on the answers to the interrogatories can only be sustained when the answers are in irreconcilable conflict with the general verdict, and cannot be reconciled by any evidence that might have been properly admitted under the issues of the case. Jeffersonville, etc., Ry. Co. v. Holden, 180 Ind. 301, 307, 102 N. E. 21;Cleveland, etc., Ry. Co. v. Federle, 50 Ind. App. 147, 152, 98 N. E. 123;Lutz v. Cleveland, etc., Ry. Co., 108 N. E. 886, 888;Louisville, etc., Ry. Co. v. Lottich, 106 N. E. 903, 905.

[5] It is contended by appellant that interrogatory 10 and the answer thereto must be disregarded because it calls for the ultimate conclusion as to what amounted to due care on the part of appellee. The question and answer are as follows:

“If the plaintiff had looked with reasonable care, could she have seen the automobile which struck her while it was traveling a space of more than one square before it struck her? Ans. No.”

The question is not objectionable on the ground that it calls for the ultimate conclusion of the jury as to whether appellee, under all the facts and circumstances of the case, exercised ordinary care for her own safety. The question is limited in its scope, and seeks to ascertain whether appellee by looking could have seen the automobile which struck her while it was traveling a square or more. It may be objectionable for another reason not urged by appellant, viz., that it involves the application of a legal principle to determine whether, if appellee had “looked with reasonable care,” she could have seen the approaching automobile. Dodge Mfg. Co. v. Kronewitter, 57 Ind. App. 190-199, 104 N. E. 99;Lagler v. Roch, 57 Ind. App. 79-86, 104 N. E. 111;Tippecanoe, etc., Co. v. Jester, 180 Ind. 357-375, 101 N. E. 915, L. R. A. 1915E, 721;Marietta Glass Co. v. Pruitt, 180 Ind. 434-437, 102 N. E. 369;Board, etc., v. Bonebrake, 146 Ind. 311-315, 45 N. E. 470;Wabash Ry. Co. v. Keister, 163 Ind. 609-615, 67 N. E. 521;Pa. Co. v. Reesor, 108 N. E. 983-986.

But, disregarding this interrogatory and the answer thereto, we cannot say, as a matter of law, that the answers to the interrogatories are in irreconcilable conflict with the general verdict.

[6] In the absence of knowledge to the contrary, one who is lawfully using a public street has the right to presume that others using it in common with him will use ordinary care to avoid injuring him, and, in the absence of information or notice to the contrary, may presume that persons driving upon the street will not in so doing violate any ordinance or law, but will conform thereto. Elgin Dairy Co. v. Shepherd (Sup.) 108 N. E. 234;Rump v. Woods, 50 Ind. App. 347, 352, 98 N. E. 369;Louisville, etc., Co. v. Lottich, 106 N. E. 903-906, and cases cited.

[7] The wrongful conduct of one who runs an automobile at an unlawful rate of speed will not excuse a pedestrian upon the street from the exercise of ordinary care for his own safety; but, in the absence of knowledge on his part of such excessive or unlawful speed, the court or jury trying the case may consider the presumption of due care and conformity to the law in determining whether, under the circumstances of any particular case, such pedestrian exercised ordinary care for his own safety, or was guilty of negligence which, proximately contributed to his injury. Rump v. Woods, 50 Ind. App. 347-352, 98 N. E. 369;Louisville, etc., Co. v. Lottich, 106 N. E. 903-906;Virgin v. L. E. & W. Ry. Co., 55 Ind. App. 216-224, 101 N. E. 500.

[8] The interrogatories are in some measure contradictory to each other on the question of appellee's care in attempting to cross the street. They do not show that she wholly failed to exercise care for her safety. The general verdict finds that she exercised ordinary care in attempting to cross the street at the time and place under the conditions shown by the evidence. The answers show that she walked a distance of 16 feet from the curb before she was struck, and, if it be conceded that they also show that she did not look in the direction from which the automobile came while walking that distance, and that by looking she could have seen the approaching automobile, they are not then shown to be in irreconcilable conflict with the general verdict. Under the issues evidence was admissible that might wholly absolve her from the duty of looking in that particular direction while walking so short a distance. Likewise, had she looked and mistaken the distance or misjudged the speed of the approaching automobile, it would still be a question of fact for the jury to determine from all the facts and circumstances shown by the evidence whether, in attempting to cross, and while in the act of crossing, she exercised ordinary care for her own safety. The answers therefore, in view of the facts shown by them, the facts provable under the issues, and the presumptions appellee was...