Fort Wayne Transit, Inc. v. Shomo

• Decision Date: 25 June 1957
• Docket Number: No. 18771,18771
• Parties: FORT WAYNE TRANSIT, Inc., Claude W. Wheeier, Appellants, v. Judith Kay SHOMO, by George W. Shomo, her next friend, Appellee.
• Court: Indiana Appellate Court

Page 431

143 N.E.2d 431

127 Ind.App. 542

FORT WAYNE TRANSIT, Inc., Claude W. Wheeier, Appellants, v. Judith Kay SHOMO, by George W. Shomo, her next friend, Appellee.

No. 18771.

Appellate Court of Indiana, In Banc.

June 25, 1957.

Campbell, Livingston, Teeple & Dildine, Alexander Campbell, Thomas W. Yoder, Fort Wayne, for appellants.

Miller & Miller, Mickey M. Miller, Jeanne S. Miller, New Haven, William S. Gordon, Huntington, for appellee.

PFAFF, Judge.

This is an appeal from a judgment in an action for damages based upon the alleged negligence of the appellants Fort Wayne Transit, Inc., and Claude W. Wheeler, an employee of appellant Fort Wayne Transit, Inc., in the operation of a bus on the streets of the City of Fort Wayne, Indiana.

The complaint averred, in substance, as follows:

South Calhoun Street was a public highway running north and south in said city; and West Wayne Street was a public highway running east and west through said city; that said two streets intersect at right angles; and that traffic control signals at said intersection regulate vehicular traffic by showing red and green lights successively; that a pedestrian cross-walk was clearly marked east and west across Calhoun Street, parallel with and immediately north of West Wayne Street and that said pedestrian traffic across said Calhoun Street in said cross-walk was regulated by a traffic signal which alternately showed 'walk' and 'wait'.

That the appellant Fort Wayne Transit, Inc., regularly operated trackless trolley bus routes on South Calhoun Street extending through the intersection of South Calhoun Street and West Wayne Street; that on February 2, 1953, at about four o'clock in the afternoon, appellee was walking west on the sidewalk on the north side of West Wayne Street; that when appellee approached the east side of South Calhoun Street the traffic control light showed 'wait' for pedestrians waiting to cross South Calhoun Street; that appellee stopped in obedience thereto; that said traffic control signal changed to 'walk' and appellee proceeded from the sidewalk into the cross-walk across South Calhoun Street parallel to and north of West Wayne Street.

That at the time and place the appellants were operating a trackless trolley bus northeastward on Calhoun Street, approaching West Wayne Street from the south; that appellee reached a point approximately eight feet west of the east curb line of South Calhoun Street, all within the above cross-walk, when appellant, Claude W. Wheeler, acting as agent and motorman for appellant Fort Wayne Transit, Inc., ran a trackless trolley bus belonging to appellant Fort Wayne Transit, Inc., into and upon the appellee, knocking her to the pavement whereby she received injuries consisting of a fracture of her skull and lacerations to her head.

Appellee's amended complaint contained eight specific allegations of negligence:

1. That appellants did negligently and carelessly drive and operate said bus into the said cross-walk without first ascertaining whether anyone was lawfully occupying said cross-walk and in particular the appellee herein.

2. That appellants failed to keep a proper lookout for pedestrians lawfully using said cross-walk at said time and place and in particular the appellee herein.

3. That appellants carelessly and negligently drove said motor bus across said cross-walk and into and against this appellee when at said time and place the appellants, by use of reasonable care could have and should have known that appellee herein was then and there lawfully using said cross-walk, and as a result of such negligent failure on the part of the appellants herein said appellants negligently and carelessly drove into and against the appellee herein.

4. That the appellants did then and there carelessly and negligently drive and operate said bus into and across said West Wayne Street in disobedience of and against a traffic control light which showed red 'stop' for northbound vehicular traffic.

5. That the appellants did then and there negligently and carelessly drive and operate said vehicle at a speed greater than was reasonable and prudent under the conditions herein alleged and having regard to the actual and potential hazards then existing, to-wit, thirty miles per hour.

6. That the appellants did then and there carelessly and negligently drive and operate said bus over the aforesaid pedestrians' cross-walk, which said cross-walk was at said time being lawfully used by this appellee and other pedestrians and that said appellants did negligently and carelessly fail to yield the right of way to said appellee, all in violation of a city ordinance of the City of Fort Wayne, Indiana, then in full force and effect.

7. That the appellants did then and there carelessly and negligently drive and operate said bus through said intersection and into and against the appellee and did negligently and carelessly fail to give said appellee any audible warning by horn, whistle or otherwise, of the approach of said vehicle to said appellee.

8. That the appellants did then and there carelessly and negligently fail to apply the breakes and fail to stop said bus when, by the exercise of prudent and reasonable care under the circumstances, the appellants could have applied said brakes and stopped said bus, so as to prevent striking said appellee, who was then and there using said cross-walk.

The prayer of the complaint asks judgment for $100,000.

Issues were joined upon appellee's amended complaint and the answer of the appellants in two paragraphs, the first paragraph being a denial under the rules, and the second paragraph alleging contributory negligence.

Trial by jury resulted in a verdict in favor of appellee for $15,000, upon which judgment was entered in accordance therewith.

The assigned errors relate to the overruling of appellants' motion for a new trial. The said motion contains four clauses or grounds which, in substance, are as follows: Error in the amount of recovery in that it is too large; the decision of the court is contrary to law; the decision of the court is not sustained by sufficient evidence; and alleged error in the rulings of the court in the admission of certain evidence over the objections of the appellants; and that the court erred in giving appellee's instructions numbered 3 and 10 and refusing to give appellants' instructions numbered 4 and 13.

It was stipulated by and between appellee Judith Kay Shomo by George Shomo, her next friend, and Fort Wayne Transit, Inc., and Claude W. Wheeler, appellants, that the following shall be considered as taken as being part of the evidence in this cause:

That on February 2, 1953, there were in full force and effect in the City of Fort Wayne, Allen County, Indiana, the following ordinances of the said City of Fort Wayne:

Section 73b, Chapter 31, of the Municipal Code of Fort Wayne:

'Pedestrians facing green or 'go' or 'walk' signal.

'Pedestrians facing a green or 'go' signal or facing a 'walk' signal where the intersection is controlled by a so-called 'wait-walk' signal may proceed across the street or roadway within any marked or unmarked crosswalk. Such pedestrians shall have the right of way over all vehicles, including those making turns, until they have reached the opposite curb.'

Section 21, Chapter 31, of the Municipal Code of Fort Wayne:

'Obedience to sign and signals required:

'It shall be unlawful for any operator or for the motorman of any streetcar to disobey the instruction of any official traffic sign or signal placed in accordance with the provisions os this chapter, unless otherwise directed by a police officer.'

Section 22, Chapter 31, of the Municipal Code of Fort Wayne:

'Traffic control signal legend.

'Whenever traffic at an intersection is controlled bys traffic control signals exhibiting colored lights or the word 'go' 'caution' and 'stop', said lights and terms shall indicate as follows, except as provided in section 73 of this chapter:

'Green or 'go'. Traffic facing the signal may proceed except that vehicular traffic shall yield the right of way to pedestrians and vehicles lawfully within a crosswalk or the intersection at the time such signal was exhibited.

'Yellow or 'caution'. When shown along following the green or 'go'. Traffic facing the signal shall stop before entering the nearest crosswalk at the intersection unless so close to the intersection that a stop cannot be made in safety.

'Red or 'stop'. Traffic facing the signal shall stop before entering the nearest crosswalk at the intersection or at such other point as may be designated by the board of public safety, and remain standing until green or 'go' is shown alone.'

Section 73c, Chapter 31, of the Municipal Code of Fort Wayne:

'Pedestrians facing a red or 'stop' signal or facing a 'wait' signal where the intersection is controlled by a 'wait-walk' signal shall not enter the street or roadway until a proper signal is exhibited authorizing pedestrians to cross.'

It was further stipulated between the said parties that on February 2, 1953, vehicular traffic at the intersection of Wayne and Calhoun Streets in the City of Fort Wayne, Indiana, was controlled by electrical automatic traffic signals placed there pursuant to legally constituted authority and that pedestrian traffic at said intersection was controlled by automatic walk and wait signals placed there pursuant to legally constituted authority.

From the record it appears that the appellee was six years of age at the time of the accident; that she received a small deep wound on the left side of her head which bled profusely. Her lower extremities showed some bruises and abrasions. Intracranial bleeding continued for twenty-four to forty-eight hours. On the day following the accident she began to vomit and had a headache and surgical intervention was necessary to avoid serious dehydration and intracranial damage due to pressure on the brain. Bony fragments had to be...