Indiana Union Traction Co. v. Kraemer

• Decision Date: 19 June 1913
• Docket Number: No. 7,974.,7,974.
• Citation: 55 Ind.App. 190,102 N.E. 141
• Parties: INDIANA UNION TRACTION CO. v. KRAEMER.
• Court: Indiana Appellate Court

55 Ind.App. 190

102 N.E. 141

INDIANA UNION TRACTION CO.

v.KRAEMER.

No. 7,974.

Appellate Court of Indiana, Division No. 2.

June 19, 1913.

Appeal from Superior Court, Marion County; Joseph Collier, Judge.

Action by Jacob H. Kraemer against the Indiana Union Traction Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Instructions Nos. 25, 26, and 27 were as follows:

No. 25: “I instruct you that in a case of this kind the plaintiff may recover damages for an injury because of the defendant's negligence, notwithstanding that plaintiff's own negligence exposed him to the risk of injury, if such injury was more immediately caused by the defendant's omission, after becoming aware of the plaintiff's danger, to use ordinary care for the purpose of avoiding injury to him. The right to recover under such circumstances is based upon and invokes the doctrine of what is known in law as ‘the doctrine of last clear chance.”’

No. 26: “‘The doctrine of last clear chance’ is that the defendant, in running and operating a street car, failed to exercise reasonable care, after it became apparent to the motorman of the car, or could so have become known to him, by the use of ordinary care, that a collision was likely to occur. Now, in such case, in order for the plaintiff to recover, plaintiff must prove, by a fair preponderance of the evidence, to your satisfaction that under the circumstances and conditions, as shown in evidence in this cause, it became apparent to the motorman on the defendant's car that a collision was likely to occur to the plaintiff; and that, after it so became apparent to him, such motorman could, by the use of ordinary care, have checked or stopped his car in time to prevent a collision, with resulting injury to plaintiff, and failed to do so. In such event, such motorman would be chargeable with negligence in failing to do what he could have done by the exercise of reasonable care; and, his negligence being negligence at a later time than the negligence of the injured person in entering or attempting to enter upon said track, such later negligence is, in law, held to be the proximate cause of the injury, and that the prior negligence of the injured person is a remote cause only, and for the remote cause a party is not chargeable.”

No. 27: “As I have instructed you, if you find from the evidence that the defendant's motorman, in charge of said car, saw and knew, or by the exercise of ordinary care could have seen and known, that plaintiff, as he approached and was about to enter upon said track, was unaware and unconscious of the approach of said car, and was thereby placed in a perilous and dangerous position and likely to be injured by coming in contact with said car, and you further find that defendant's motorman saw and knew plaintiff's peril in time to have avoided striking him, but failed to do so, the motorman's negligence in so failing would be the last negligence which caused the injury. I also instruct you that in such case, if the motorman, after he saw the plaintiff's peril, could not, by the exercise of reasonable care and effort, have avoided striking and injuring the plaintiff, then the doctrine of last clear chance would not apply.”

J. A. Van Osdol and Kittinger & Diven, all of Anderson, for appellant. Rucker & Rocap, of Indianapolis, for appellee.

IBACH, J.

In this action appellee recovered $1,500 for personal injuries sustained when he was struck by appellant's interurban car while he was walking across Massachusetts avenue in Indianapolis.

The only errors assigned arise under the motion for new trial. They are that the verdict is not sustained by sufficient evidence in that the evidence shows contributory negligence on appellee's part; that the court erred in giving instructions 25, 26, and 27 embodying the doctrine of last clear chance, and in failing to give instruction 3 at appellant'srequest, and in permitting appellee to testify, over appellant's objection, to a conversation with appellant's claim agent.

[1] The evidence shows that appellee started diagonally across Massachusetts avenue at an alley crossing during a heavy rain and carrying an umbrella pulled down low over his head; that he looked to the northeast before starting across the street and saw no car; that he could see at that time about 490 feet; that when he had walked about 40 feet and was about 2 or 3 feet from the track, about 6 or 7 feet from where he was struck, he glanced out under the umbrella to the northeast up the track and saw no car within a distance of 30, 40, or 50 feet; that, when he had taken one or two steps on the track, he was struck by appellant's interurban car coming from the northeast and was injured. There was testimony that the car was running at the rate of 20 miles an hour; other witnesses placed its speed as low as 8 miles an hour; several witnesses testified that they did not hear any gong sounded or signals given; others testified that the gong was sounded several times.

Appellee looked from two points in the direction from which the car was coming but saw no car. Whether he was guilty of contributory negligence in failing to look in that direction for an approaching car at other times and places before reaching the tracks of appellant was wholly a question of fact for the jury and not one of law for the court. It must be remembered that he was also under a duty to look for cars in an opposite direction, and to look out for wagons and other vehicles, some of which,...