Howard v. Indianapolis St. Ry. Co.

• Decision Date: 08 October 1902
• Citation: 29 Ind.App. 514,64 N.E. 890
• Parties: HOWARD et al. v. INDIANAPOLIS ST. RY. CO. et al.
• Court: Indiana Appellate Court

29 Ind.App. 514

64 N.E. 890

HOWARD et al.

v.INDIANAPOLIS ST. RY. CO. et al.

Appellate Court of Indiana, Division No. 2.

Oct. 8, 1902.

Appeal from circuit court, Hancock county; C. G. Offutt, Judge.

Action by Asher P. Howard and others against the Indianapolis Street Railway Company and others. From a judgment for defendants, plaintiffs appeal. Reversed.

E. W. Little, J. J. Rochford, Chas. Remster, and Robt. Williamson, for appellants. Winter & Winter, for appellees.

ROBY, J.

The appellants brought separate suits for damages on account of alleged personal injuries suffered by each of them. They aver negligence on the part of appellee. The same occurrence forms the basis for both actions, which were by agreement tried together, and appealed in the same way. At the conclusion of appellants' evidence, appellee moved the court for a peremptory instruction in its favor. The motion was sustained, and the jury instructed to find for the defendant. From judgments upon the verdicts so procured the appeal is taken.

The assignments of error are that the court erred in overruling appellants' motions for new trials. Giving the instruction mentioned was one of the reasons given for new trials. An attempt was made to bring the evidence into the record in accordance with the provisions of the ineffective act of 1899. The transcript of evidence contains the essentials of a bill of exceptions, and its substance is looked to in determining whether it is in fact a bill of exceptions. Adams v. State, 156 Ind. 596, 604, 59 N. E. 24. The bill of exceptions is none the less a bill of exceptions on account of the name mistakenly given it. The record shows that it was signed by the trial judge, filed after being so signed, incorporated into the transcript, and duly certified. Breedlove v. Breedlove, 27 Ind. App. 560, 61 N. E. 797;Ayers v. Blevins (Ind. App.) 62 N. E. 305. Appellants are husband and wife. They were, on the 16th of April, 1899, traveling west along Washington street, extending east from the city of Indianapolis. They were in a single top buggy, the side and back curtains of which were closed; and used the north side of the street until they reached the town of Irvington, about four miles east of Indianapolis. The appellee's street railway made a square turn from the street in question south, into or through Irvington. When the appellants reached the railway, it was at this place, and they were compelled, by various obstructions in the street, to cross from the north to the south side thereof, and continued on that side of the street and tracks of the railway until they reached Coleman street, when they undertook to recross to the north side of the street, and, when upon the railway tracks, were struck and injured by a west-bound street car. The railway tracks were double. The north track was used by west-bound cars and the south track by east-bound cars. The collision occurred on a graveled way, and at a street crossing. The north track was unballasted except at the crossing. It was there graveled to a width of about 10 feet. The crossing was not made at right angles, but bore to the west. The way followed by appellants was the usual one, and the only one open to the public along that part of the street. The track was 30 to 35 feet higher 450 feet east of the crossing than at the crossing. From that point it descended until, 1,500 feet east from the crossing, a street car was hidden by the intervening crest, coming gradually into view as it drew nearer. At 5:30 o'clock p. m. appellants reached Coleman street, Asher P. Howard driving. He stopped his horse still, looked east twice, also to the west, arising out of his seat to do so. He did not see or hear any approaching car. He then started across the street, and drove over the railway tracks at a slow walk. The gravel was loose, and the wheels of the buggy made a grinding noise, which may have prevented the noise of the...