Indianapolis Rys. v. Williams
| Decision Date | 01 March 1945 |
| Docket Number | 17281. |
| Citation | 59 N.E.2d 586,115 Ind.App. 383 |
| Parties | INDIANAPOLIS RAILWAYS, Inc., v. WILLIAMS. |
| Court | Indiana Appellate Court |
Appeal from Superior Court No. 1, Marion County; Judson L. Stark Judge.
Action for personal injuries by Edward Williams, a minor, by his next friend, Stella Williams, against the Indianapolis Railways, Incorporated. Judgment for plaintiff, and defendant appeals.
Affirmed.
Arthur L. Gilliom, Karl J. Stipher, and B. E Sattler, all of Indianapolis, for appellant.
Dailey Davis & Harsock, of Indianapolis, for appellee.
This is an action brought by appellee by next friend to recover damages for personal injuries sustained by him when 14 years of age in a collision between a bicycle on which he was riding and the side of a north bound trackless trolley car within the cross walk area on the north side of the intersection of Washington and Illinois Streets in the city of Indianapolis, Indiana, on the theory that the injuries were proximately caused by the alleged negligence of appellant's operator who was in charge of the trackless trolley. The accident on which the action is based occurred at 1:52 p. m. on September 15, 1942, while the trackless trolley was in the process of making a right-hand turn from Washington Street north on Illinois Street, through the pedestrian traffic on the north cross walk, on the regular route of said trackless trolley as a common carrier passenger vehicle, and while appellee was riding his bicycle west along the north side of Washington Street, intending to cross Illinois Street. The bicycle contacted the right side of the trolley car near its right front wheel, causing appellee to fall off his bicycle and catch his left foot under the right front wheel of the trolley car. The injuries to appellee's left foot necessitated the amputation of three toes, to wit: the big toe and the second and third toes of his left foot.
The cause was tried by jury and resulted in a verdict being rendered in favor of the appellee in the sum of $7,500 and, after plaintiff filed a remittitur of $2,000 pursuant to the order of the trial court, appellant's motion for a new trial was overruled and judgment rendered in favor of appellee and against appellant in the sum of $5,500, from which this appeal is prosecuted.
The error assigned in this court is the overruling of the appellant's motion for a new trial. The errors assigned in the motion for new trial and presented in this court are: (1) The verdict rendered by the jury in the cause is not sustained by sufficient evidence; (2) the court committed errors of law at the trial of the cause in overruling and denying each of defendant's written motions made at the close of plaintiff's evidence and at the close of all of the evidence for a directed verdict in favor of the defendant; (3) the verdict of the jury is contrary to law; (4) the damages assessed in the verdict are excessive; (5) the court erred in giving to the jury, at appellee's request and over appellant's specific written objections thereto, instructions Nos. 10, 4, and 8, respectively. All other assigned reasons in the motion for new trial are waived by the failure of appellant to present them under the propositions, points and authorities of its brief in this cause. Myers et al. v. Brane, Ind.App.1944, 57 N.E.2d 594; Duffy v. Hayden, 1943, 114 Ind.App. 125, 50 N.E.2d 666; Moore v. Ohl, 1917, 65 Ind.App. 691, 116 N.E. 9.
The complaint, in one paragraph, charged appellant with negligence in each of the following particulars, to wit: (1) That defendant carelessly, negligently, and recklessly failed and neglected to warn plaintiff of the approach of said trackless trolley by blowing a horn; (2) that defendant carelessly, negligently, and recklessly failed and neglected to stop said trackless trolley prior to the time defendant drove said trackless trolley into and against the bicycle on which plaintiff was riding; (3) that defendant, while so driving and operating the said trackless trolley at said time and place aforesaid, carelessly and negligently failed to keep a lookout for other persons and vehicles using said highway; (4) that defendant carelessly and negligently failed and neglected to keep said trackless trolley under control so as to avoid striking plaintiff; (5) that defendant carelessly, negligently, and with reckless disregard for the safety of others, and particularly for the safety of the plaintiff, failed and neglected to permit west bound traffic, and particularly this plaintiff, to clear before turning said trackless trolley onto said Illinois Street; (6) that defendant carelessly and negligently, with reckless disregard for the safety of others and particularly for the safety of this plaintiff, drove said trackless trolley through said west bound traffic and into and against the bicycle on which said plaintiff was riding.
In the first assignment of error appellant most earnestly contends that the verdict of the jury is not sustained by sufficient evidence. This assignment requires us to examine the record to ascertain whether or not there is any competent, substantial evidence to be found in the record to support the verdict. In doing this, we are not permitted to weigh conflicting evidence, or to substitute our judgment as to the weight of the evidence for that of the jury, which has received the approval of the trial court in overruling the motion for new trial.
An examination of the record discloses that there is evidence in the record favorable to appellee, which is the only evidence that we are permitted to consider in determining the assignment that the verdict is not sustained by sufficient evidence and the correctness of the ruling of the trial court in overruling each of appellant's motions for a directed verdict, which tends to establish the following facts:
That on September 15, 1942, the date of the accident, the appellee, Edward Williams, was 14 years of age; that he resided with his mother at 512 North Beville Street, Indianapolis, Indiana, which is in the northeast part of the city of Indianapolis from the place where the accident occurred. After lunch on the 15th day of September, 1942, appellee rode his bicycle from his home to the downtown district in the city of Indianapolis; that he stopped at a drugstore at the northeast corner of Pennsylvania and Washington Streets, parked on the sidewalk, and went inside of the drugstore to get a drink of water. Upon leaving the drugstore, he walked his bicycle along the north sidewalk on Washington Street from Pennsylvania Street west two blocks to the intersection of Washington and Illinois Streets.
That Washington Street runs due east and west and is intersected at right angles by Illinois Street running north and south; that there are double street car tracks in the center of Washington Street, known as the west bound or north track and east bound or south track; that double street car tracks are also located in the center of Illinois Street, known as the north bound or east track and the south bound or west track; that the distance from the north rail of the west bound car track in Washington Street to the north curb line of Washington Street is 32 feet, 3 inches; that from the curb line over to the building, or property, line on the north side of Washington Street is a sidewalk which is 20 feet, 5 inches in width; that there is also constructed adjacent to and along side of the north rail of the west bound track in Washington Street a safety zone, or loading platform, for the purpose of passengers boarding and alighting from west bound street cars and trackless trolley cars; that the distance from the north edge of the safety or loading zone to the north curb of Washington Street is 24 feet, 3 inches; that this space between the north edge of the safety zone and the north curb of Washington Street is used for all vehicular traffic moving west upon and over Washington Street; that at the west end of the safety, or loading, platform aforesaid there is located, operated, and maintained an automatic electric traffic signal which displays a green or 'go' light and a red or 'stop' light for traffic moving west on Washington Street across Illinois Street; that there is located at said intersection a curved car track, leaving the west bound track in Washington Street and curving in a northwesterly direction onto the north bound car track in Illinois Street; that this curved track leaves the west bound track in Washington Street a short distance west of the west end of the safety, or loading, platform, located in Washington Street, as above described, and connects with the north bound car track in Illinois Street within the area of the cross walk extending along the north side of Washington Street across Illinois Street; that the distance between the east rail of the north bound car track in Illinois Street and the curb line on the east side of Illinois Street is 22 feet, 2 inches.
The when appellee reached the intersection of Washington and Illinois Streets, he set the bicycle in the gutter along the north side of Washington Street at a point about 10 feet east of the automatic electric traffic signal, above described that after placing his bicycle in the gutter, appellee looked at the light showing on said traffic signal and the green light was showing, which meant 'go'; that thereupon appellee started to ride his bicycle west along the north side of Washington Street within one or two feet of the north curb, intending to cross Illinois Street; that he continued to ride due west for a distance of approximately 35 feet, or something like that, until he reached the car tracks located at said intersection and used by street cars and trackless trolleys turning north...
To continue reading
Request your trial