Indianapolis St. Ry. Co. v. Darnell

• Decision Date: 27 October 1903
• Citation: 32 Ind.App. 687,68 N.E. 609
• Parties: INDIANAPOLIS ST. RY. CO. v. DARNELL.
• Court: Indiana Appellate Court

32 Ind.App. 687

68 N.E. 609

INDIANAPOLIS ST. RY. CO.

v.DARNELL.¹

Appellate Court of Indiana, Division No. 2.

Oct. 27, 1903.

Appeal from Circuit Court, Morgan County; M. H. Parks, Judge.

Action by John W. Darnell against the Indianapolis Street Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.Winter & Winter, Oscar Matthews, and W. H. Latta, for appellant. Elliott, Elliott & Littleton, for appellee.

COMSTOCK, J.

Appellee brought this action in the superior court of Marion county against appellant for damages caused by appellant running its car against appellee's wagon and injuring his person. It is charged that appellant was negligent in the operation of its car. The trial was had in the circuit court of Morgan county upon a change of venue before a jury, and a verdict returned upon which judgment was rendered in favor of appellee for $6,000. It was charged in the complaint that appellee drove said vehicle upon the street car tracks of the appellant on West Morris street, in the city of Indianapolis, and there stopped and waited for a freight train to cross the street and get out of his way; that “while upon said track *** waiting for said freight train to pass, *** being in said vehicle, *** defendant's car ran against the same.”

Numerous errors are assigned, but in the oral argument counsel for appellant stated that the court would be asked only to pass upon the sufficiency of the evidence to sustain the verdict. Appellant introduced no evidence. At the conclusion of appellee's evidence, appellant moved the court to instruct the jury to find for the defendant. Appellee offered no evidence as to the manner of the accident but his own. His testimony is substantially as follows: “I live at 1305 Belmont avenue. Am 51 years of age, and in the milk business. On September 7, 1900, I left home about a quarter past four in the morning. It took me about thirty minutes to drive to the Belt crossing. I saw the street car tracks on Belmont avenue, where the cars turn; and all the time after I got on Reisner street I did not see any street cars. At that time in the morning cars run out there every hour. After I reached West Morris street, I drove east on the north side of Morris street-north of the tracks-to Harding street. Then I drove on the car track on the north side of the street to the switch, crossed over to the south track, and drove up to the belt on the south track. I drove within twenty-five feet of the belt-my person was within twenty-five feet; my horse's head within fifteen feet. As I was driving across the switch, I looked to see if any car was approaching from the west. I could see back beyond Reisner street, and there was no car between Reisner street and me. There was no obstruction to the view. The track is straight. There is a downgrade from Reisner street to Harding street, and then it is upgrade to the belt. It is about nine hundred feet from Reisner street to the belt. There are two tracks on Morris street. Cars going east use the south track. West of the belt the roadway of Morris street had been worked over recently. They had put in new ties, and, instead of filling up, they had left the ends of the ties exposed, now and then, so that you could see them clear back on Harding street on the south side. The north side was very rough. Just west of the belt there is a dead track that leads from the belt to the switch. Just west of the belt there were a couple of cross-ties and some gravel between the south track and the dead track, and on the south side of the track there were long pieces of iron piled up extending back close to the sidewalk. There were two poles stood on the south side of the street, about twenty-five feet from the belt, and these irons stuck out about three feet beyond these poles. When I drove up, there were two vehicles standing in the north roadway, north of the north track-a two-horse wagon close up to the belt, and a spring wagon just behind it. The switch begins about seventy-five feet west of the belt. A long freight train obstructed my passage. As I passed the switch, the train began to pass over Morris street. I looked back to see if a car was coming, didn't see any, and passed over on the south side, and drove up to the belt and stopped. I remained in that position from three to five minutes. I looked back twice, I think, for cars. I think I looked the last time about half a minute before I was struck. I did not see a car at any time. When I looked I put my head out of the door of the wagon. I could see beyond Reisner street. All of the times when I looked I was sitting in the wagon. The doors of my wagon were in the center-one on each side. They were open. There was a glass all around the wagon sides back and front, but the front glass had been taken entirely out, and the back window was drawn up, open, and hooked to the top of the wagon. This glass was about twelve inches in width, and the back door there was drawn up and hooked on hooks put there for that purpose. Below the glass there were two doors that closed together in the middle. They were fastened. There was no room to drive a wagon south of the tracks and between them and the obstructions, and this condition was the same up to the belt. The belt crossing is boarded. It was the custom of the street railway company to stop their cars when nearly to the railroad, and the conductors get off and go forward and look up and down to see if there are obstructions, and then motion the car across. There was no obstruction to prevent a motorman seeing me, only my milk wagon. It was seven feet high. I was sitting in my wagon, on the south side of the wagon. I looked back twice, and saw no car. As I settled myself in my wagon, just turned around and looked up and down the belt, and just at that time the car struck me from the rear. It is my impression that it was one-half minute after I looked the last time until the car struck me. It was a very hard blow. As it struck the wagon knocking it east, my head and shoulders came out through the opening where the glass was till my head came down below or near where the bumper of the street car was. At that time I saw the motorman with his hand on the brake, whirling it around as fast as he could. Then my head struck something, and next thing that I knew I was laying on the street by the sidewalk. I did not hear the car. The noise of the freight passing over the crossing prevented my hearing the car. I did not see the car approaching. After I revived I saw the car standing with my wagon just in front of it. The next I remember I was in the ambulance. After I got home I remember the doctor setting my shoulder. The cap of my shoulder was knocked off and broken. The round bone of the shoulder was fractured. I had two or three ribs broken. I had a knot on my head, and I was hurt in the throat, and my spine was hurt. It was daylight at the time of the accident, and a clear morning. I don't know what car struck me, but none run then except those of the Indianapolis Street Railway Company. I was in bed four weeks, confined to the house about two months, and after that went about with a cane or crutch. I have regained the use of my left shoulder, but there are some adhesions to be broken up. I had a paralytic stroke seven months after the accident. I can't taste anything. I sleep poorly. I have been to the city to market with a load of roasting ears since.” Cross-examination: “I was entirely familiar with Morris street, and the location of the tracks, and the way in which the cars were operated there. I had known for a week before I was hurt of the obstructions in the street on both sides of the track, just west of the belt railroad. On that morning, when I got to Harding street, I turned upon the north street car track. Before that I had been driving in the roadway. From Harding street to the switch I drove on the north track. As I got to the switch, I saw two vehicles in the roadway at the north side of the track. As I...