Elgin Dairy Co. v. Shepherd

Citation108 N.E. 234,183 Ind. 466
Decision Date23 March 1915
Docket NumberNo. 22767.,22767.
PartiesELGIN DAIRY CO. v. SHEPHERD.
CourtSupreme Court of Indiana

OPINION TEXT STARTS HERE

Appeal from Superior Court, Marion County; Chas. J. Orlison, Judge.

Action by John W. Shepherd against the Elgin Dairy Company. There was a judgment for plaintiff, and defendant appealed to the Appellate Court, where the cause was transferred to the Supreme Court under Burns' Ann. St. 1914, § 1394, cl. 2. Affirmed.

For dissenting opinion, see 109 N.E. 353.

See, also, 103 N. E. 433.

Elam, Fesler & Elam, of Indianapolis, for appellant. Earle E. McFerren, Muter M. Bachelder, and Earl R. Cox, all of Indianapolis, for appellee.

COX, J.

Appellee recovered a judgment against appellant in the trial court for personal injuries sustained by him in a collision between a motorcycle, on which he was riding, and a motor truck, then in use by appellant in its business and driven by one of its employés. The collision happened at the intersection of Twenty-Fourth and Bellefountain streets in the city of Indianapolis, while appellee, riding on his motorcycle, was crossing Bellefountain street.

[1] With a general verdict for appellee the jury returned answers to interrogatories. Appellant moved for judgment on these answers notwithstanding the general verdict. This motion was overruled, and this ruling presents the first error assigned and urged as cause for reversal. In support of this assignment of error it is contended that the answers to the interrogatories establish facts from which the court must say as a matter of law that appellee was guilty of contributory negligence. The material facts established by the answers upon which this claim is based are as follows: At the street intersection in question the roadway of Bellefountain street is 20 feet wide between curbs, and Twenty-Fourth street 23 feet wide. Appellee was riding east on the south side of Twenty-Fourth street, and when about 12 feet west of the west curb of Bellefountain street, or 25 feet from the center, he looked north and saw appellant's truck coming from the north on the west side of Bellefountain street about 50 feet north of Twenty-Fourth street. He was then entering Bellefountain street at the intersection, and looked south almost immediately, and then continued eastward to cross Bellefountain street without again looking to the north. He did not look enough to ascertain the speed of the truck. He traveled across the street at a speed of 8 miles an hour. Appellant's truck came down Bellefountain street and entered the intersection at a speed of 15 miles an hour. It did not continue south on the west or right-hand side of the street all the way before the collision, but turned to the left and struck appellee's vehicle at a point 15 feet east of the west curb of Bellefountain street, or 6 inches east of the center line of the street. It did not slow up before the collision. The jury specifically answered one interrogatory that it was not a close question whether appellee would cross in safety after seeing the truck, if it kept on at the same speed.

These facts, it is claimed by counsel for appellant, show that appellee took a desperate chance in attempting to cross the street in the face of the oncoming truck, and that he should have continued to observe its progress toward their lines of crossing, and that therefore he was injured by his own want of due care. One of the charges of negligence against appellant, on which appellee's complaint was founded, was the violation of a city ordinance which required such vehicles as those involved in this case and others (except street cars), to keep to the right side of streets, and made it unlawful to drive along the middle or left side thereof. Now it is clear, from facts stated above, that this collision would not have taken place if appellant's employé in charge of the truck had continued in compliance with this ordinance. Appellee, when he saw the approaching truck, had only 25 feet to go to clear the center line of Bellefountain street. He was on a line south of the center line of Twenty-Fourth street. At that time the truck was, in obedience to the ordinance, on the west or right side, for it, of Bellefountain street, 50 feet north of Twenty-Fourth street, more than 60 feet north of the center line of the latter street, and still further from a point in the street intersection towards which the truck was traveling, and which appellee would have to cross in pursuing his way eastward. The truck was going at less than twice the speed of appellee's vehicle, and it had considerably more than twice the distance to travel to pass this point than appellee had. It is manifest, therefore, that, had the two vehicles continued as they were going, appellee would widely have cleared the crossing point of the lines on which they were going before the truck reached it. That he did not was due to the action of the truck driver in changing his course. Certainly, until the contrary appeared, appellee was entitled to assume that appellant's employé would continue in obedience to traffic rules and was not required to be alert and watch for violation of them. He had looked north first, the direction from which he would naturally first encounter danger of collision, and then south, the direction from which he might later meet vehicles coming to the intersection. Under the facts found it was, to say the least, for the jury to determine whether or not he was guilty of contributory negligence, and this it did favorably to the appellee by the general verdict for him. The answers rather support than conflict with the general verdict.

[2] The action of the court in overruling appellant's motion for a new trial is assigned as erorr. A cause relied on for a new trial was the insufficiency of the evidence in fact and law to support the general verdict. Error in this particular is urged on the same claim of appellee's contributory negligence as that just considered in the ruling on the motion for judgment on the answers. The evidence, without material conflict, establishes the facts substantially as found by the answers as above stated. And to these may be added the facts, also shown in substance without dispute by the evidence, that just before the collision the truck driver changed the straight southward course of the truck to the southeast and struck the rear wheel of appellee's motorcycle with the left front wheel of the truck at a point in the street intersection a little south of the center line of Twenty-Fourth street and east of the center line of Bellefountain street. The evidence gives no indication of an intention on the part of the truck driver to turn and go east on Twenty-Fourth street, but, to the contrary that his destination led him south on Bellefountain street beyond Twenty-Fourth street. He testified that he turned from about 2 feet east of the west curb of Bellefountain street, on which line he had been driving the truck, to avoid a delivery wagon coming from the south on the east side of the center of Bellefountain street, which was still south of Twenty-Fourth street, a most unusual and obviously negligent performance, as due care, the positive provisions of the ordinance, and the ordinary law of the road would have required him to remain in the line he was going. Upon these facts it is manifest that the jury was well within its province in determining that appellee's injuries were due to the negligence of appellant's employé in charge of its truck, and that appellee was not guilty of negligence which contributed thereto.

[3] The giving of certain instructions was made several causes for a new trial. By the fifth instruction, which went to the question of appellant's negligence, and which is the first one complained of as erroneous, the jury was told that:

“Reasonable care or ordinary care is that degree of care which an ordinarily prudent person similarly situated would or ought to have exercised under the circumstances surrounding the transaction under investigation.”

It is urged that the words in the instruction which we have italicized enabled the jury to set up a higher degree of care for the appellant than the law warrants, and therefore rendered the instruction erroneous and presumptively harmful. Without the words in question the instruction correctly states the test by which ordinary care is to be measured, and the use of these words opens the instruction to criticism. It is, however, a minor inaccuracy of statement, which it is quite manifest, from the undisputed facts, worked no harm to the appellant.

[4][5] In the twelfth instruction the jury was told, in substance, that if it found, from the evidence, the existence, in force, of the ordinance counted upon by the complaint, then, in the absence of knowledge to the contrary, appellee had a right to presume that appellant would perform any duty imposed by such ordinance at the street intersection. Counsel for appellant treats the instruction as conveying to the jury that the appellee was entitled to presume that appellant's driver would continue southward on the west or right-hand of the street, and doubtless, in view of the facts involved, it is the correct intent of the instruction. It is argued by counsel that if the driver had desired to turn and travel east on Twenty-Fourth street, or if there had been a vehicle ahead which required it, he could rightfully have turned to the left side of the street. It is enough to say that neither of these hypotheses existed. The court was instructing the jury as to the law on the facts before it,...

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