Indianapolis Street Railway Co. v. Bordenchecker

• Decision Date: 12 May 1904
• Docket Number: 4,868
• Citation: 70 N.E. 995,33 Ind.App. 138
• Parties: INDIANAPOLIS STREET RAILWAY COMPANY v. BORDENCHECKER, BY NEXT FRIEND
• Court: Indiana Appellate Court

70 N.E. 995

33 Ind.App. 138

INDIANAPOLIS STREET RAILWAY COMPANY v. BORDENCHECKER, BY NEXT FRIEND

No. 4,868

Court of Appeals of Indiana

May 12, 1904

From Superior Court of Marion County (63,607); Vinson Carter Judge.

Action by William Bordenchecker, by next friend, against the Indianapolis Street Railway Company. From a judgment for plaintiff, defendant appeals.

Affirmed.

F Winter and W. H. Latta, for appellant.

C. E Fenstermacher and W. W. Caffrey, for appellee.

OPINION

COMSTOCK, J.

Appellee, an infant, by his next friend, sued appellant to recover damages for personal injuries. The complaint was in two paragraphs. The first charges that at the time plaintiff received his injuries the defendant had laid tracks and was engaged in operating a street railway upon the streets of Indianapolis; that plaintiff was on one of its tracks, and on account of his youth could not realize the danger; that defendant could have seen plaintiff more than fifteen hundred feet, and by using ordinary care could have stopped the car before striking plaintiff, but that the defendant negligently ran its car against him without giving warning of its approach, and inflicted the injuries of which he complains. The charging part of the second paragraph differs from the first in alleging that plaintiff, instead of standing on, was standing within one foot of, the defendant's track at the time of the collision. A demurrer to each paragraph of the complaint was overruled. The cause was put at issue by general denial, and trial by jury resulted in a verdict and judgment in favor of appellee for $ 300. The overruling of appellant's motion for a new trial is relied upon for a reversal of the judgment.

The first reason for a new trial discussed is that the verdict is not sustained by sufficient evidence, and for that reason is contrary to law. The plaintiff, as shown by the evidence, was two and one-half years old, too young to be negligent himself or to have the negligence of others imputed to him. If, therefore, there is evidence fairly tending to show that appellant's negligence caused plaintiff's injuries, this court can not disturb the judgment for the reason for a new trial under consideration. The evidence shows that the accident occurred on Tenth street, a street in the city of Indianapolis, running east and west, and over which appellant maintains a double track. Said street at the place of collision is intersected by the following streets: Brookside avenue from the north at an angle; Highland and Stillwell streets from the south. The street is thirty-five feet wide from curb to curb. The distance from the curb to the first rail of the south track is ten feet and to the first rail of the second track is twenty feet. The view of the track from said place of collision is unobstructed for a distance of a mile. On the day of the accident the mother of the plaintiff sent him and his sister, whose age is not given, but who is spoken of as a little girl, to a grocery on the corner of Highland avenue for a loaf of bread. The home of the children was on Brookside avenue, to which they were returning when the plaintiff received his injuries.

Appellee introduced no witness who saw the collision. Ida Geiger, a witness in behalf of appellee, testified in part as follows: "In October, 1901, I was living on Brookside avenue. A child was injured on Tenth street during that month, about twenty minutes of twelve, noon. I went to the drug store, and saw the child coming from McLane's grocery at the corner of Highland avenue and Tenth street. That is a short distance--hardly a half square--from Brookside avenue. When I saw the child he was coming from the grocery; just leaving the sidewalk, almost between the first track going east, almost ready to step onto the track. He was going north. I was going south. His little sister was with him and they had a loaf of bread in their arms. I spoke to them. I saw a car approaching, probably a block away, coming from the city. I went to a meat market at the corner of Stillwell street at the south side of Tenth, and the next I saw of the little boy was after the car had struck him. I remained in the meat market a few moments, and when I came out the car had stopped, and I saw the motorman or conductor picking up a child quite a distance back of the car. * * * The boy lay almost three rods back of the car. * * * I heard no gong sounded. When I got there the motorman had the child in his arms. The motorman said it was a narrow escape for both of them. When I passed the children the little girl was about one step in front of the boy. * * * I did not see the car hit the child. * * * The bakery is at Highland avenue. When I saw the children they were coming from the bakery. * * * I did not see them come out of the bakery. I saw them leave the sidewalk. They were between the curb and the track in the roadway. They were going diagonally in the direction of Brookside avenue, northwest, and I was going southwest."

Daisy McLane testified as follows: "I have a grocery at the corner of Tenth street and Highland avenue. The plaintiff came in the grocery and got a loaf of bread just before the accident. Their home is northwest of my store. I saw the car pass the door just after they left. I do not remember of hearing the gong. After the car went by I went out and the plaintiff was in front of the drug store near the track."

There was no evidence as to the speed of the car. No one connected with appellant corporation as agent or employe testified. Appellant introduced but one witness. He testified that appellee left the sidewalk, and immediately began to run diagonally in the direction of the track, passing over a distance of approximately twenty feet; that at the time the child began to run towards the track the car was sixty-five feet from the place of collision; that as soon as plaintiff started to run in the direction of the track the motorman began sounding his...