Indianapolis Traction and Terminal Company v. Howard

• Decision Date: 24 June 1920
• Docket Number: 22,808
• Citation: 128 N.E. 35,190 Ind. 97
• Parties: Indianapolis Traction and Terminal Company v. Howard
• Court: Indiana Supreme Court

128 N.E. 35

190 Ind. 97

Indianapolis Traction and Terminal Company v. Howard

No. 22,808

Supreme Court of Indiana

June 24, 1920

Rehearing Denied January 13, 1921.

From Johnson Circuit Court; William E. Deupree, Judge.

Action by Thomas Howard against the Indianapolis Traction and Terminal Company. From a judgment for the plaintiff, the defendant appeals.

Affirmed.

L. E Slack, D. E. Watson and W. H. Latta, for appellant.

Forney & Curtis, H. N. Spaan and E. W. Felt, for appellee.

Willoughby J. Lairy, J., dissents.

OPINION

Willoughby, J.

This was an action by appellee against appellant for personal injuries sustained by appellee in a collision between one of appellant's cars and a hose wagon, upon which appellee was riding as an employe of the city of Indianapolis in the capacity of fireman. The collision occurred at the intersection of East Sixteenth street and College avenue, in the city of Indianapolis.

The only error assigned is the overruling of appellant's motion for a new trial. The only question presented by appellant's brief is error of the trial court in giving, at appellee's request, instructions Nos. 1, 3, 4, and 5 tendered by appellee.

In point 5 of its brief appellant says: "It was error to permit the introduction in evidence of Ordinance No. 1277 of the city of Indianapolis," and says that the appellant objected to the introduction of this ordinance and moved to strike it out after it had been admitted by the court, and its motion was overruled. No ground or reasons are stated for objecting to the introduction of said ordinance or for striking it out after it had been read in evidence. When objections are made to the admission of evidence, the grounds of the objection must be fully and definitely stated; and an objection that evidence is incompetent, irrelevant and immaterial is too indefinite to present any question as to the admissibility of the evidence. Marietta Glass Mfg. Co. v. Pruitt (1913), 180 Ind. 434, 102 N.E. 369; Hammond, etc., Electric R. Co. v. Antonia (1908), 41 Ind.App. 335, 83 N.E. 766; Hicks v. State (1905), 165 Ind. 440, 75 N.E. 641; Mortgage Trust Co. v. Moore (1898), 150 Ind. 465, 50 N.E. 72.

In Roach v. Cumberland Bank (1916), 60 Ind.App. 547, 111 N.E. 320, the court holds that no question is presented on the admission of evidence where appellant's brief does not disclose what, if any, objection was made to its admission. In German Fire Ins. Co. v. Zonker (1915), 57 Ind.App. 696, 108 N.E. 160, it was held that the question of the admission or exclusion of evidence was not properly presented when appellant's brief did not show what objection was made to the introduction of such evidence.

As appellant's brief does not show any valid reasons or grounds of objection, no question is raised on the admission of said ordinance in evidence. The ordinances in evidence are as follows:

"No. 1282. Be it ordained by the Common Council and Board of Aldermen of the city of Indianapolis, That the privilege of the streets of said city be, and the same is hereby granted to the city fire engines, Chief Fire Engineer, hook and ladder wagons, and hose reels of said city, and the same are not limited as to speed while in the discharge of duty; Provided, however, that all such engines and wagons shall be provided with gongs, which shall be sounded at short intervals by the driver or other person, when going at a rapid rate of speed on any of the streets of said city."

"No. 1277. And be it enacted and ordained that should any person or persons injure, deface, or in any manner destroy any city fire apparatus, or should any person or persons hinder or obstruct any city fire company or hook and ladder company, or any member thereof, from freely passing along the streets of the city, to and from a fire or in any manner hinder or prevent any of the companies, or any member of the same, from operating at any fire, each and every person so hindering, obstructing or preventing shall be fined not less than $ 5 or more than $ 20, to be recovered as other city fines are recovered."

In instruction No. 1 the jury are told that, if they find from the evidence that the conductor or motorman could have heard the sounding of the gong on the hose wagon in question when a collision with the hose wagon could have been avoided by slowing up or stopping the car, it was the duty of defendant's servants to avoid the collision by slowing up or stopping the car. The objections urged against this instruction are that there is no ordinance introduced which lays upon the street railway the duty of doing the specific act mentioned in the instruction; that § 1282 of the ordinances gives "the privilege of the streets to fire apparatus"; that it does not lay upon any citizen the duty of yielding the right of way nor of slowing up or stopping whenever he hears a fire bell ringing.

It was the duty of appellant's servants to use ordinary care in the exercise of the senses of sight and hearing. It was the duty of the motorman to use ordinary care to keep his car under control. The appellant would not be liable for an error in judgment on the part of the motorman when danger of collision was imminent, but would be liable for the motorman's conduct in approaching the crossing at a high rate of speed without having his car under control. Ordinary care would require the servants of appellant to stop or slow up the car if by so doing they could avoid a collision. The appellant concedes that under the ordinance the plaintiff had the right of way. Appellant's instruction No. 5, given by the court, says: "An ordinance has been introduced in evidence whereby the city of Indianapolis gave the fire department the right of way."

Appellant complains because the court gave to the jury, at appellee's request, instruction No. 3. In this instruction the court defined appellee's rights under the ordinance in question and what the ordinance meant. It was the duty of the court to construe the ordinance, and to give to the jury its legal effect. The appellee had the right to rely upon the observance of the ordinance in question by the servants of appellant. Indianapolis Traction, etc., Co. v. Hensley (1917), 186 Ind. 479, 115 N.E. 934, 117 N.E. 854.

Appellant complains that this instruction does not embrace negligence and contributory negligence. It was not necessary that it should, as in instructions Nos. 13 and 14, given by the court of its own motion, negligence is correctly defined, and in instructions Nos. 2, 3, 4, 5, 6, 8, 9, 12 and 13, given at request of defendant, negligence and contributory negligence are fully discussed...