Conder v. Griffith

• Decision Date: 10 March 1916
• Docket Number: No. 8981.,8981.
• Parties: CONDER v. GRIFFITH.
• Court: Indiana Appellate Court

61 Ind.App. 218

111 N.E. 816

CONDER

v.GRIFFITH.

No. 8981.

Appellate Court of Indiana.

March 10, 1916.

Appeal from Superior Court, Marion County; Pliny W. Bartholomew, Judge.

Action by Howard Griffith against Croel P. Conder. Judgment for plaintiff, and defendant appeals. Reversed, with instructions.Earl R. Conder, of Indianapolis, for appellant. M. L. Clawson, of Indianapolis, for appellee.

FELT, P. J.

This is an appeal from a judgment obtained by appellee against appellant for personal injuries alleged to have been caused by appellant's negligence in driving his automobile into and against appellee while he was crossing a street in the city of Indianapolis. The errors assigned and relied on for reversal are the overruling of appellant's motions for judgment on the answers to interrogatories and for a new trial.

The complaint was in two paragraphs, on which issues were joined by general denial. The facts disclosed by the complaint are as follows: On May 1, 1912, appellee was employed by the Indianapolis Traction & Terminal Company as a motorman. The company owned and operated a double-track car line running east and west on East Tenth street, in the city of Indianapolis. The south track was used by east-bound cars, and the north track by west-bound cars. On the day in question appellee was operating an east-bound car, and stopped it opposite a fire engine house located on the north side of the street. When the car stopped he alighted and started to cross in front of the street car on his way to the engine house, when appellant approached from the west and collided with him.

The negligence charged in each paragraph of complaint is that appellant negligently and carelessly drove his automobile on the north side of said street and negligently, carelessly, and in violation of the state law, drove said automobile east on the left side of said street and at the rate of 20 miles an hour, and without knowledge or warning ran against, upon, and over appellee, thereby inflicting the injuries of which he complains. The first paragraph also charges that such conduct was in violation of a certain ordinance of the city of Indianapolis then in full force and effect which provides that it shall be unlawful for all riders and drivers of vehicles, whether such vehicles are drawn or propelled by animal or other power, to ride or drive on, over, and along the middle, or on, over, and along the left side, of any street in the city of Indianapolis, except in the necessary act of crossing the same, or of passing a vehicle going in the same direction; that all such riders and drivers shall keep as nearly as practicable to the right of such street, but the provisions of this section shall not apply to street railways, that any such person using any of the streets of the city of Indianapolis, when met by any other vehicles, shall keep to the right, and, when overtaken by any vehicle, shall likewise keep to the right, allowing such rider or driver to pass him to the left, so as to permit such vehicles to pass free and uninterrupted.

[1] Under the assignment that the court erred in overruling appellant's motion for a new trial appellant contends that the court erred in giving to the jury instruction 11, which is as follows:

“No. 11. It is provided by the law of our state as follows: That any person or persons operating a motor vehicle shall, upon meeting any person or persons riding, leading, or driving a horse, horses, or other draft animals, or other farm animals on any public highway, not operate it at a speed to exceed six miles an hour. A violation of this law is negligence, and if you find from a fair preponderance of the evidence in this case that the defendant violated this law and that the plaintiff did not contribute to his injury in any degree by his want of ordinary care and prudence, and such want of care and negligence was the proximate cause of plaintiff's injury, then your finding should be for the plaintiff.”

The act of 1907 (Acts 1907, p. 558; section 10468, Burns' Statutes of 1908) in force when the alleged injury was received provides as follows:

“That any person or persons operating a motor vehicle shall, upon meeting any person or persons riding, leading or driving a horse, horses or other draft animals or other farm animals on any public highway, proceed at a speed not to exceed six miles per hour until past such horse, horses or other draft animals or other farm animals, and upon request or signal by putting up the hand from any such person or persons so riding, leading or driving any horse, horses or other draft animals or other farm animals (if in sufficient light for such signal to be perceptible) immediately bring his motor vehicle to a stop and remain stationary so long as may be reasonable to allow such horse, horses or other draft animals or other farm animals to pass.”

Another section of the statute then in force limited the speed of automobiles to eight miles an hour in the business and closely built up part of the city and to 15 miles per hour in other portions of the city.

The complaint charges that appellant was operating his automobile in violation of the state law, and the court by instruction 11 told the jury that he was negligent if he violated the foregoing statute, which limits speed to six miles per hour under the conditions specified; that, if such negligence was the proximate cause of appellant's injury, he could recover if he was not himself guilty of contributory negligence. The provisions of the statute referred to in the instruction have no application to the case made by the complaint or the evidence, and it was therefore error to give the instruction. B. & O. Ry. Co. v. Peck, 53 Ind. App. 281-285, 101 N. E. 674;Indiana Ry. Co. v. Maurer, 160 Ind. 25-31, 66 N. E. 156;Indianapolis, etc., Co. v. Mathews, 177 Ind. 88-107, 97 N. E. 320.

Instruction 12 given by the trial court relates to certain provisions of the city ordinance mentioned in the complaint to the effect that it shall be unlawful for vehicles drawn by animal or other power to ride or drive...