Indianapolis Traction And Terminal Company v. Lee
Citation | 118 N.E. 959,67 Ind.App. 105 |
Decision Date | 14 March 1918 |
Docket Number | 9,530 |
Parties | INDIANAPOLIS TRACTION AND TERMINAL COMPANY ET AL. v. LEE, EXECUTRIX |
Court | Court of Appeals of Indiana |
From Boone Circuit Court; Willett H. Parr, Judge.
Action by Sybilla S. Lee, executrix of the last will of Charles H Lee, deceased, against the Indianapolis Traction and Terminal Company and others. From a judgment for plaintiff, the defendants appeal.
Affirmed.
D. E Watson, A. J. Shelby and W. H. Latta, for appellants.
Charles F. Remy, James M. Berryhill, William H. Remy and Rogers & Smith, for appellee.
This is a suit for damages for the death of appellee's decedent, Charles H. Lee, alleged to have been caused by the negligence of appellants. Issues were joined by general denial to the third paragraph of complaint on which the case was tried. A trial by jury resulted in a verdict for $ 3,200 against appellants. Each appellant filed a separate motion for a new trial, which was overruled and an exception reserved. Judgment was rendered on the verdict. Each appellant has assigned as error the overruling of such motion for a new trial.
Omitting formal averments, the third paragraph of complaint in substance shows that the accident in controversy occurred at the crossing of Ohio and Illinois streets in the city of Indianapolis; that on and prior to November 12, 1913, ordinances of said city were in force which required the Indianapolis Traction and Terminal Company to keep in repair that portion of the streets which lay between the tracks of said company and a space eighteen inches along and outside of the rails of its tracks; that tracks of said company on each of the streets aforesaid intersected at said crossing; that at and prior to the date aforesaid said company negligently, with full knowledge of the conditions of said street, and in violation of said ordinances permitted said streets at the crossing aforesaid to become and remain defective and out of repair at the places where it was by said ordinances required to keep the same in good repair; that said streets had been paved and the pavement at said places had been worn and removed so that holes were left three or four inches deep and below the upper surface of the tracks for a long time prior to the date aforesaid; that such holes were so large that the wheels of ordinary automobiles and trucks would drop therein when passing over the streets; that decedent, on the day aforesaid, was walking across Illinois street, in a careful and prudent manner, going east on Ohio street, about twenty-five feet north of the crossing of the car tracks on said streets; that defendant John Cheek was then and there driving an automobile truck, owned by his employer, Major K. Gleason, going north on Illinois street at the rate of eight miles per hour; that said Cheek, with full knowledge of the defective condition of said streets at said crossing, negligently drove said truck in such manner as to cause one of the wheels thereof to drop into one of said holes in the pavement; that thereupon, on account of the negligence aforesaid on the part of each of said defendants and the defective condition of said streets, said Cheek negligently lost control of said truck, and the same by reason thereof ran against and injured said decedent and thereby caused his death.
In the motions for a new trial appellants charge that the verdict is not sustained by sufficient evidence, and that the court erred in giving to the jury instructions Nos. 1, 5 and 6 tendered by appellee.
In the briefs, the only point presented as to the evidence is that there is much conflict and confusion in the evidence, not only between the witnesses for the plaintiff and the defendants, but between the several witnesses for the plaintiff; that on account thereof great care should be taken to determine the correctness of the instructions given; that any error in the instructions should be considered harmful to appellants and should not be treated as harmless because of other instructions given to the jury. In support of these contentions appellants cite the following cases: Pittsburgh, etc., R. Co. v. Haislup (1906), 39 Ind.App. 394, 396, 79 N.E. 1035; Cleveland, etc., R. Co. v. Snow (1905), 37 Ind.App. 646, 654, 74 N.E. 908; Neeley v. Louisville, etc., Traction Co. (1913), 53 Ind.App. 659, 669, 102 N.E. 455; Louisville, etc., Traction Co. v. Korbe (1910), 175 Ind. 450, 453, 455, 93 N.E. 5, 94 N.E. 768.
Instructions Nos. 1, 5 and 6 complained of as erroneous are as follows:
Appellants assert that instruction No. 1 is erroneous and harmful because there was no issue as to the decedent's right to cross the street, and the instruction was therefore confusing and misleading to the jury. The complaint shows that the decedent was struck and injured while lawfully upon the street and exercising due care for his own safety. Considering the issues and the evidence, the instruction was neither erroneous nor misleading. If there was no controversy as to the decedent's right to cross the street, appellants could not have been harmed in any way by the giving of the instruction. Stringer v. Frost (1889), 116 Ind. 477, 479, 19 N.E. 331, 2 L. R. A. 614, 9 Am. St. 875; Simons v. Gaynor (1883), 89 Ind. 165, 166; Clear Creek Stone Co. v. Dearmin (1902), 160 Ind. 162, 169, 66 N.E. 609; Apperson v. Lazro (1909), 44 Ind.App. 186, 191, 87 N.E. 97, 88 N.E. 99.
Appellants say that the court erred in giving instruction No. 5, supra, because it is mandatory and fails to "correctly state the law as to every point essential to plaintiff's right to a judgment"; that it was harmful to the traction company because it assumes that there was a hole in the pavement "large enough for a wheel of said truck to have dropped into" the same, and that the presence of such hole constituted actionable negligence on the part of the company; that the court invaded the province of the jury in determining that there was a defect in the street as would constitute negligence of the company; that under the law of the last clear chance the negligence of the driver was the sole proximate cause of the injury.
The instruction may be subject to some criticism, but it does not belong to that class of mandatory instructions which must be considered and passed upon without reference to other instructions given to the jury. While mandatory in form, and failing to specifically set out each element essential to appellee's recovery, it contains the qualifying phrase, "all as alleged in the complaint." The complaint avers facts which constitute actionable negligence, and if proved entitle plaintiff to a recovery. The phrase aforesaid directs attention to the charge made in the complaint and necessarily to the instructions which deal with the several elements essential to a recovery and with every phase of appellants' defense.
In determining whether appellants were harmed by the giving of instruction No. 5, we may look to the other instructions, and consider all the instructions given to the jury which bear on the questions involved. Indianapolis, etc., Traction Co. v. Wiles (1910), 174 Ind. 236, 242, 244, 91 N.E. 161, 729; Indiana Union Traction Co. v Jacobs (1906), 167 Ind. 85, 93, 78 N.E. 325; Burford v. Dautrich (1913...
To continue reading
Request your trial-
Indianapolis Traction & Terminal Co. v. Lee
......9530.Appellate Court of Indiana, Division No. 1.March 14, 1918. Appeal from Circuit Court, Boone County; Willett H. Barr, Judge. Suit by Sybilla S. Lee, executrix, etc., of Charles H. Lee, deceased, against the Indianapolis Traction & Terminal Company and another. Judgment for plaintiff, and defendants appeal. Affirmed [118 N.E. 960]D. E. Watson, of Indianapolis, A. J. Shelby, of Lebanon, and W. H. Latta, of Indianapolis, for appellants. Charles Remy, James M. Berryhill, and William H. Remy, all of Indianapolis, and Rogers & ......