Indianapolis St. Ry. Co. v. Johnson

• Decision Date: 29 November 1904
• Docket Number: No. 20,398.,20,398.
• Parties: INDIANAPOLIS ST. RY. CO. v. JOHNSON.
• Court: Indiana Supreme Court

163 Ind. 518

72 N.E. 571

INDIANAPOLIS ST. RY. CO.

v.JOHNSON.

No. 20,398.

Supreme Court of Indiana.

Nov. 29, 1904.

Appeal from Circuit Court, Boone County; Samuel R. Artman, Judge.

Action by Mary E. Johnson against the Indianapolis Street Railway Company. A judgment was rendered in favor of plaintiff, and defendant appealed to the Appellate Court, by which the case was transferred to the Supreme Court, as authorized by Burns' Ann. St. 1901, § 1337u. Affirmed.

F. Winter, W. H. Latta, and S. M. Ralston, for appellant. W. J. Beckett, for appellee.

JORDAN, J.

The complaint in this action upon which a recovery below was had alleges, among others, the following facts: On October 5, 1901, plaintiff was riding in a buggy with her husband, who was driving the horse attached to said vehicle. She had no control of the horse, and did not attempt in any way to direct her husband how he should drive the buggy or where he should drive, or in what manner he should manage and control the horse. She was merely a passive guest of her husband while riding in the buggy. The defendant's double line of tracks of street railway which it was operating in the city of Indianapolis extends east and west on Market street, running past and in front of the market house, commonly known as “Tomlinson Hall.” At the time in question, which was Saturday night of the day aforesaid mentioned, there were horses and vehicles along said market place which were backed down to the curb on both sides of the defendant's double tracks, leaving a passageway on East Market street from Delaware to Alabama street, which way consisted of defendant's tracks, for the reason that all of the space on either side of the tracks in said street was occupied by vehicles and horses down to the curb, as hereinbefore stated. The condition of the street at the time of the accident was well known to the defendant and its servants and employés in charge of its cars running east and west on said Market street in front of said hall. The only part of the roadway left unoccupied in said street for the passage of horses and vehicles was the part occupied by the defendant's south track in passing east, and upon the north track in passing west. Vehicles were driven through said Market street and place east upon the south track of the defendant's tracks, and west upon the north track, and all of these facts were well known to defendant at the time of the accident. Plaintiff's husband desired to pass in and through said Market street from Delaware Street East to Alabama street, and for that purpose he turned on defendant's south track at Delaware street, at which time plaintiff looked west on Market street for a street car, but neither saw nor heard one approaching on said south track. Her husband then turned the vehicle in which she was riding east upon said south track, and drove east thereon about one-half square, and while thus driving on said track one of defendant's cars, in charge of its servants in the line of their employment, negligently approached from the rear the buggy in which plaintiff was riding. The motorman and servants of the defendant in charge of said car could see and did see the buggy in which plaintiff was seated, which was then upon the track in front of said car. That said motorman could see and did see and know that neither plaintiff nor her husband could drive the horse and vehicle off said track by reason of the condition of the street as hereinbefore described. That the motorman could see and did see the perilous position and condition in which the plaintiff was placed upon said track, and could, in the exercise of ordinary care, have stopped said car and checked the speed thereof, and thereby avoided inflicting any injury upon plaintiff. But the pleading charges that, when the plaintiff was in the position of peril upon said track as aforesaid stated, the defendant's servant and motorman in charge of said car negligently ran it upon said track towards said vehicle, and negligently ran against said vehicle, striking it in the rear, thereby negligently overturning it, throwing the plaintiff therefrom onto the street, under said vehicle, thereby negligently and seriously injuring her about the head, body, back, and limbs, etc. A demurrer to the complaint was overruled by the lower court, and the cause was put at issue by appellant's filing an answer of general denial. The venue of the cause was changed to the Boone circuit court, wherein a trial by jury resulted in a general verdict being returned in favor of appellee. Along with its verdict the jury returned answers to a series of interrogatories. Appellant unsuccessfully moved for judgment in its favor on the answers of the jury to the interrogatories. Its motion for a new trial was denied, and judgment was rendered in favor of appellee upon the verdict of the jury. Appellant appeals, and assigns as error (1) that the court erred in overruling the demurrer to the complaint; (2) overruling its motion for judgment on the answers to the interrogatories; (3) in overruling its motion for a new trial.

The first error assigned is not argued by appellant, and consequently must be considered as waived.

Appellant's counsel argue that the answers of the jury to the interrogatories conclusively disclose that appellee was guilty of negligence which contributed to the injury she sustained. These answers in part show that, at the time of the accident in controversy appellee and her husband were driving in a buggy along Market street in the city of Indianapolis. They turned onto Market street from Delaware street, and were driving eastward on the latter street on and along the south track of appellant's railway, and at the time of the accident had reached a point on Market street about 75 feet from Alabama street. The car which collided with the buggy and turned it over, thereby injuring appellee, was running towards the east on said street, in the rear of plaintiff's buggy. It appears that neither she nor her husband looked to the rear to see how near the car was in the rear of the buggy. The motorman in charge of the car sounded the gong when he discovered a boy with a wheel on the track. On account of the boy being on the track, the car, it appears, stopped to let him get off, and at the time it stopped for this purpose the distance intervening between the front of the car and the buggy in which the plaintiff was seated was 12 feet. The jury find that after the boy got out of the way the car ran about 20 feet before it collided with the buggy. As the plaintiff and her husband were traveling towards the east along Market street, the jury find that she heard the car approaching in the rear. At the time of the accident the buggy was moving along the street towards the east with its two north wheels between the rails of the track on which the car was running. The jury further find that the appellee, while she and her husband were traveling from Delaware street to where the collision occurred, warned her husband of the danger they were in by reason of the car approaching their buggy in the rear. After turning into Market street from Delaware street, the plaintiff made no effort to ascertain the location and whereabouts of the car that came up from the rear. From these facts alone appellant's counsel contend that it appears that appellee did not exercise such care as the law exacts. An examination of the special findings, in part and as a whole, discloses no such irreconcilable conflict between them and the general verdict as would entitle appellant, over the general verdict, to a judgment in its favor. The rule is one well settled that all reasonable presumptions and intendments must be indulged by the court in favor of the general verdict, and nothing can be presumed in favor of the special findings or answers to interrogatories. The reason for this rule has been repeatedly given in the decisions of this court. Under the general verdict the jury is required to find upon all of the issuable facts proven in the case, while the court, in testing the force of isolated facts as disclosed by the special findings, is not in a position to know, and consequently is not advised, what other facts bearing on the same matter or question were considered by the jury in arriving at the general verdict. The force and effect of the general verdict in this case compels the court to assume that the jury found under the evidence that the plaintiff was not guilty of contributory negligence. Southern Ind. Ry. Co. v. Peyton, 157 Ind. 690, 697, 61...