Hamilton, Harris & Company v. Larrimer

• Decision Date: 28 April 1914
• Docket Number: 22,060
• Citation: 105 N.E. 43,183 Ind. 429
• Parties: Hamilton, Harris & Company v. Larrimer
• Court: Indiana Supreme Court

105 N.E. 43

183 Ind. 429

Hamilton, Harris & Company v. Larrimer

No. 22,060

Supreme Court of Indiana

April 28, 1914

Rehearing Denied June 22, 1915.

From Superior Court of Marion County (82,975); Joseph Collier Judge.

Action by Al Larrimer against Hamilton, Harris and Company. From a judgment for plaintiff, the defendant appeals.

Affirmed.

Michael A. Ryan, John C. Ruckelshaus, Alexander C. Ayres, and Frank C. Ayres, for appellant.

Clinton B. Marshall, Eph Inman, E. M. Hornaday and U. C. Stover, for appellee.

OPINION

Erwin, J.

This was an action brought by appellee against appellant to recover damages for personal injuries, sustained by appellee on May 10, 1910. The complaint was in four paragraphs. The first paragraph alleges, in substance, that appellee was attempting to cross a public street in the city of Indianapolis, from west to east; that appellant was the owner of, and was operating an automobile truck, going north on the street; that there was a sprinkling cart moving northward along the street, leaving more space to its left than to its right, and that appellant's truck was negligently propelled to the right of the sprinkling cart, and that appellant's truck was propelled negligently, carelessly and recklessly, and ran upon, and over, appellee without any fault, or negligence upon his part, whereby he was severely injured, to his damage, $ 25,000. The second and third paragraphs state the same grounds of complaint, in slightly different language. The fourth paragraph states the same facts, in substance, and alleges further that at the time of the accident, there was an ordinance in force in the city requiring vehicles to keep to the right, and allow other vehicles coming behind to pass on the left, and avers that appellant violated this ordinance by passing to the right of the sprinkling cart, and by reason thereof appellee was injured, and closing with a prayer for relief in the sum of $ 25,000. No demurrer was addressed to this complaint, and the same is not questioned here. Judgment was rendered for appellee in the sum of $ 15,000, after a motion for a new trial on the part of appellant, was by the court overruled. The only error assigned, is that the court erred in overruling the motion for a new trial.

The causes for a new trial are, that the verdict of the jury is not sustained by sufficient evidence and is contrary to law; that the damages are excessive; that the court erred in the giving of certain instructions; in refusing to give certain instructions tendered by appellant; sustaining objections to certain questions asked by appellant of certain of its witnesses; striking out certain answers made by witnesses in answer to questions asked by appellant of one of its witnesses; and alleged misconduct of appellee's attorney.

There was some evidence on each and every averment in the complaint. Its weight and the credibility of the witnesses were questions for the determination of the jury, and its findings are conclusive and this court has no authority to pass upon the sufficiency of the same.

The court of its own motion gave nineteen instructions, which, with instruction No. 2 tendered by the appellant covered every phase of the case, including negligence, contributory negligence, the facts necessary to establish the same with further instructions as to the rules which should govern in the weighing of evidence and the credibility of witnesses, the facts which the jury might take into consideration, in fixing its verdict as shown by the evidence; and taken as a whole, were a proper presentation of the law governing the case. Appellant complains that the court refused to give a mandatory instruction, directing the jury to return a verdict for appellant. This was rightly refused. Haughton v. Aetna Life Ins. Co. (1905), 165 Ind. 32, 73 N.E. 592, 74 N.E. 613; Farmers' Nat. Bank v. Coyner (1909), 44 Ind.App. 335, 88 N.E. 856.

Appellant tendered an instruction to the effect that if there was room to pass the water wagon on the right, it was not a violation of the city ordinance to do so, and appellant would not be liable. This the court refused to give, and rightly so, for the willful or negligent violation of a city ordinance is negligence per se. Pittsburgh, etc., R. Co v. Moore (1899), 152 Ind. 345, 350, 53 N.E. 290, 44 L. R. A. 638; Pennsylvania Co. v. Stegmeyer (1889), 118 Ind. 305, 309, 20 N.E. 843, 10 Am. St. 136, and cases cited. The ordinance in question made no exception as to sprinkling carts, and ...