Evans v. Adams Exp. Co.

• Citation: 23 N.E. 1039,122 Ind. 362
• Parties: Evans v. Adams Exp. Co.
• Decision Date: 27 February 1890
• Court: Supreme Court of Indiana

122 Ind. 362

23 N.E. 1039

Evans

v.Adams Exp. Co.

Supreme Court of Indiana.

Feb. 27, 1890.

Appeal from circuit court, Gibson county; O. M. Welborn, Judge.

Action by Jonathan Evans against the Adams Express Company. Judgment was rendered for defendant, and plaintiff appealed.

A. P. Twinham, W. D. Robinson, and Lucius C. Embree, for appellant. Clarence A. Buskirk and John W. Brady, for appellee.

Mitchell, C. J.

Evans sued the Adams Express Company to recover damages for injuries alleged to have resulted to him from being run over in a public street in the city of Princeton by a horse and wagon alleged to have been negligently driven by the agent or employe of the company. There was a verdict and judgment for the defendant below. There is no controversy as to the facts. The evidence shows that about 7 o'clock on the evening of November 12, 1888, the appellant was standing on a cross-walk in a public street of the city of Princeton, conversing with two acquaintances. After being thus engaged for a few moments, they stepped aside from the cross-walk, and continued in the street talking. The appellant stood in the street about eight feet from the curb, near the margin of the traveled track, over which horses and vehicles were accustomed to pass; there being, however, about 30 feet of space in the street, over which a horse and wagon might have been driven without coming in contact with the appellant. It was after night-fall, but it was not so dark but that persons standing or a horse and vehicle approaching on the street could be seen. The Adams Express Company employed an agent at Princeton, who transacted its business for a stipulated price per month, and furnished his own horse and wagon, and employed a driver at his own expense, to carry express packages and matter to and from the trains. The United States mail was also carried to and from the trains in the same wagon, and, when not occupied in carrying express or mail matter, the horse and wagon were employed by the owner, as opportunity offered, for hire. On the evening in question the boy having the horse and wagon in charge received a sack of mail at the post-office, and while on his way with it received at another place a parcel which was to go by express. With the mail-sack and express package in his wagon, the boy was pursuing his way to the depot, another boy occupying the driver's seat with him; the horse being permitted to walk at a moderate pace, without being guided. When within about 12 feet of the place where the appellant and his friends were standing, the boy observed them; and seeing two of them move out of the way, and being playfully engaged with the other boy, he did not afterwards see the appellant until the wagon wheel struck and threw him to the ground, inflicting painful injuries upon his person. The jury having found, in answer to a special interrogatory, that the appellant was not in the exercise of ordinary care at the time he was injured, it is proper to remark that no question is made on this appeal relating to the liability of the express company for the negligence of the driver employed by the owner of the horse and wagon. Railroad Co. v. Farver, 111 Ind. 195, 12 N. E. Rep. 296.

At the proper time the plaintiff asked the court to give the jury the following, among other instructions: “(12) The fact that at the time of the alleged injury the plaintiff was in the street, and not on the sidewalk or regular crossing for footmen, will not of itself preclude him from recovering, if you find that he was injured, as alleged, by the negligence of the driver of the vehicle in running it against and over him. An individual on a street of a city, whether he be on a sidewalk, a foot-crossing, or on a carriage-way of such street, is bound to use only ordinary care to avoid injury, and whether such care has been used depends upon all the facts and circumstances surrounding the event.” This instruction relates to the subject of contributory negligence, and, while we regard it as in some respects defective, we do not deem it necessary to point out wherein it is inaccurate; since, even if it had been entirely correct, it would not have been error to refuse it, because the court had sufficiently expounded the law to the jury covering the subject of contributory negligence. We may remark, however, that it cannot be said, as a matter of law, that standing in the carriage-way of a public street in a city, in the dark, and engaging in conversation, without using sufficient vigilance to discover a slowly approaching...