Cullman v. Haute

• Decision Date: 02 June 1915
• Docket Number: 8,592
• Parties: CULLMAN v. TERRE HAUTE, INDIANAPOLIS AND EASTERN TRACTION COMPANY
• Court: Indiana Appellate Court

109 N.E. 52

60 Ind.App. 187

CULLMAN v. TERRE HAUTE, INDIANAPOLIS AND EASTERN TRACTION COMPANY

No. 8,592

Court of Appeals of Indiana

June 2, 1915

Rehearing denied October 14, 1915. Transfer denied November 19, 1915.

From Superior Court of Marion County (84,349); Charles J. Orbison Judge.

Action by Daniel Cullman against the Terre Haute, Indianapolis and Eastern Traction Company. From a judgment for defendant, the plaintiff appeals.

Affirmed.

M. M Bachelder, for appellant.

W. H. Latta, for appellee.

OPINION

IBACH, P. J.

This was an action to recover for personal injuries sustained by appellant in a collision between an automobile in which he was riding and one of appellee's interurban cars then being operated on a street in the city of Indianapolis. A trial of the case before a jury resulted in a verdict for appellee.

The only question presented on appeal is the correctness of the ruling of the trial court in refusing to grant appellant a new trial. Appellant's only contention is that the giving of instruction No. 11 constitutes reversible error. This instruction reads as follows: "A motorman operating an interurban car upon a city street, and seeing a person driving in the street parallel to the track upon which the car is being operated, and not within dangerous proximity thereto, has a right to presume that such person will exercise reasonable and ordinary care and will not drive upon the track when said car is in dangerous proximity. It is the duty of such motorman, if he sees such person approaching the track in a vehicle, to give warning of the approach of his car, if he has the time and opportunity in the exercise of ordinary care, and he may proceed without stopping the same upon the presumption that such person will not drive upon the track in front of his car when it is in dangerous proximity to said person and vehicle."

Appellant contends that by giving such instruction the court invaded the province of the jury, that it was for the jury to determine whether when he saw the automobile approaching the track, the conditions and circumstances shown by the evidence were such as to require the motorman merely to sound an alarm and proceed, or whether they would require the motorman to immediately bring his car to a stand, or to check its speed so that he could prevent an injury in case the driver of the vehicle did not desist from his course. It may be conceded that the instruction complained of is not strictly accurate in all its parts, nor is it complete, and it is therefore subject to criticism,...