Dieckman v. Louisville & I. Traction Co.

Decision Date23 November 1909
Docket NumberNo. 6,799.,6,799.
Citation46 Ind.App. 11,89 N.E. 909
CourtIndiana Appellate Court
PartiesDIECKMAN v. LOUISVILLE & I. TRACTION CO.

OPINION TEXT STARTS HERE

Appeal from Circuit Court, Clark County; H. C. Montgomery, Judge.

Action by Ella Dieckman, as administratrix, etc., against the Louisville & Indiana Traction Company. Judgment for defendant. Plaintiff appeals. Reversed, with instructions.Stotsenburg & Weathers, and A. Dowling, for appellant. Geo. H. Voigt and C. D. Kelso, for appellee.

RABB, J.

Appellant's intestate was killed in a collision with one of appellee's traction cars, while undertaking to cross appellee's tracks. This action was brought by appellant to recover damages for his death, which is charged to have been occasioned by the negligence of the 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 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.

The 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 and through the park, its 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 eastward bound. The cars used for the accommodation of appellee's patrons visiting the park are ordinary city cars. Besides these, it 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 intestate lost his life, a game of baseball had attracted a large crowd to appellee's park, and it had for their accommodation in returning to the city, when the game was over, provided 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 inferring: That the deceased, 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 was approaching from the park, loaded with passengers, who not only occupied all the seats, but stood on the running boards; that the deceased 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 deceased started across the track, a heavy interurban car was approaching the crossing from the west at the rate of from 20 to 25 miles per hour, which car the deceased was unable to see at the time, on account of cars going west on the north track; that no signals were given by the interurban car of its approach to said crossing; that the deceased 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 the space between the two tracks was 6 feet and 10 inches; that the space between the interurban car going east and the city car, loaded as it was, going west, was not more than 18 inches or 2 feet; that, at the time the deceased crossed the north track, a car coming from the park toward the city was but a few feet away; that there was a large number of city cars going from the park, 12 or 15 feet apart; that the deceased 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 the appellee was guilty of negligence, and that it affirmatively shows the deceased 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, either of appellee or appellant's intestate, is primarily for the jury. It only becomes a question of law for the court when there is no dispute in the evidence, and but one inference can be reasonably 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 20 to 25 miles per hour...

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