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

118 N.E. 959

67 Ind.App. 105

INDIANAPOLIS TRACTION AND TERMINAL COMPANY ET AL. v. LEE, EXECUTRIX

No. 9,530

Court of Appeals of Indiana

March 14, 1918

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.

OPINION

FELT, J.

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: "1. If you find from the evidence that plaintiff's testator was, as a pedestrian, walking across Illinois street at the time and place in controversy, all as averred in the complaint, then I instruct you that said testator had a right to cross said street in the manner and place he did, if at the time he was in the exercise of ordinary care."

"5. If you find from a preponderance of the evidence that defendant Cheek was operating an automobile at a moderate gait, going north on Illinois street at or near the crossing of said street with Ohio street, and if you find that there was a hole or holes in said Illinois street large enough for a wheel of said truck to have dropped into said hole or holes, said hole or holes being at or near the point of junction of the curved street car rail or track, at the point in question, all as alleged in the complaint, and if you find that said Cheek saw said hole or holes, or in the exercise of reasonable ordinary care could have seen the same, and if you find that said Cheek so negligently drove said truck as to cause the wheel of said truck to drop into one of said holes, and if you find that the dropping of said wheel in said hole caused said Cheek to negligently lose control of his machine, and caused the machine to veer and hit Charles H. Lee and cause his death, all as alleged in the complaint, then you should find for plaintiff, unless you find that said Charles H. Lee was guilty of contributory negligence.'

"6. If you find from a preponderance of the evidence in this action that the plaintiff should recover against the defendants, then it will be your duty to award plaintiff such damages as will compensate said testator's widow for the pecuniary loss sustained by her as a result of his death, and in fixing the amount it will be your duty to take into consideration said testator's age at the time of his death, his health and expectancy of life, and his earning capacity, your verdict, however, not to exceed $ 10,000."

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...