Dieckman v. Louisville and Southern Indiana Traction Company
| Decision Date | 23 November 1909 |
| Docket Number | 6,799 |
| Parties | DIECKMAN, ADMINISTRATRIX, v. LOUISVILLE AND SOUTHERN INDIANA TRACTION COMPANY |
| Court | Indiana Appellate Court |
Rehearing denied March 11, 1910, Reported at: 46 Ind.App. 11 at 18.
Transfer denied May 11, 1910.
From Clark Circuit Court; H. C. Montgomery, Judge.
Action by Ella Dieckman, as administratrix of the estate of George W. Dieckman, deceased, against the Louisville and Southern Indiana Traction Company. From a judgment for defendant plaintiff appeals.
Reversed.
Evan B. Stotsenburg, John H. Weathers and Alexander Dowling, for appellant.
George H. Voigt and Charles D. Kelso, for appellee.
Appellant's decedent was killed in a collision with one of appellee's traction cars, while undertaking to cross appellee's track. This action was brought by appellant to recover damages for the death of her decedent, which is alleged to have been occasioned by the negligence of appellee.
The case was put at issue, a jury trial had, and at the conclusion of the evidence the court, upon appellee's motion, gave to the jury a peremptory instruction to return a verdict in favor of appellee. The giving of this instruction presents the only question to be determined by this court.
Appellee maintains an amusement park in the suburbs of the city of New Albany, for the purpose of enhancing the profits of its business. Appellee's tracks extend from said city, through this park, and on east to the city of Jeffersonville. From the city of New Albany and through the park the road runs east and west and is double tracked, the north track being used for its cars going west, and the south track for those east bound.
The cars used for the accommodation of appellee's patrons who visit the park are ordinary city cars. Besides these, appellee runs large interurban cars over its road, for the accommodation of passengers traveling between cities and towns on its line.
On the occasion of the accident, by which appellant's decedent lost his life, a game of baseball had attracted a large crowd to appellee's park, and it had, for the accommodation of the crowd in returning to the city when the game was over, a large number of summer street-cars in waiting at the park. At the close of the game the crowd left the grounds, some of them taking the cars, and a great number of them walking down the track toward the city. The cars, as they were loaded, were dispatched toward the city in rapid succession.
The evidence in the case would have justified the jury in finding that the decedent, after the ball game, left the ball grounds, with the crowd, and walked west along the north side of appellee's track, until he reached a highway crossing; that when he arrived at the crossing, one of appellee's cars approached from the park, loaded with passengers, who not only occupied all the seats, but also stood on the running-board; that decedent waited until this car passed, and then stepped on the north track; that before doing so he looked west for the approach of a car from that direction; that he also looked west when about the middle of the north track; that at the time decedent started across the track a heavy interurban car was approaching the crossing from the west, at the rate of from twenty to twenty-five miles an hour, which car the decedent was unable to see at the time on account of the passing of west-bound cars on the north track; that no signals were given by the interurban car of its approach to said crossing, and decedent was not aware of its approach until he was in the act of stepping on the south track; that he could not have seen the car until after he crossed the north track; that there was a space of six feet and ten inches between the two tracks, and the space between the interurban car going east, and the city car, loaded as it was, going west, was from eighteen to twenty-four inches; that at the time the decedent crossed the north track a car coming from the park toward the city was but a few feet away; that a large number of city cars were going from the park at a distance of twelve or fifteen feet apart; that decedent had time to cross the track between the cars on that track in safety, but when he crossed the north track, and arrived at a point where he could have seen, had he looked, the approach of the interurban car from the west, it would have been perilous for him either to stand still or to attempt to recross the north track in front of the car coming from the park; that just as he stepped on the south track, some one behind him called to him to "look out;" that he glanced east toward the car coming from the park, and then west, attempted to step back, slipped and fell, was run over by the interurban car and instantly killed.
The instruction complained of is sought to be justified on the ground that the evidence fails to show that appellee was guilty of negligence, and that it affirmatively shows the decedent to have been guilty of contributory negligence in attempting to cross appellee's tracks without looking for the approach of a car from the west.
The question of negligence of either appellee or appellant's intestate is primarily for the jury. It becomes a question of law for the court only when there is no dispute in the evidence, and but one inference can reasonably be drawn therefrom. In this case, the jury might well have determined that the appellee was guilty of negligence in running its cars at a speed of from twenty to twenty-five miles an hour while passing its cars and while the crowd was coming from the park. There was evidence also justifying a finding that the interurban car was not only run at what, under the circumstances, was a negligently high rate of speed, but that appellee's servants were guilty of negligence in failing to sound proper warning signals of the approach of the car to the crossing. The jury might have...
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