Indianapolis Traction & Terminal Co. v. Menze, 21,360.

• Docket Nº: No. 21,360.
• Citation: 173 Ind. 31, 88 N.E. 929
• Case Date: July 02, 1909
• Court: Supreme Court of Indiana

173 Ind. 31
88 N.E. 929

INDIANAPOLIS TRACTION & TERMINAL CO.
v.
MENZE.

No. 21,360.¹

Supreme Court of Indiana.

July 2, 1909.

Appeal from Circuit Court, Hancock County; R. L. Mason, Judge.

Action by Christian Menze against the Indianapolis Traction & Terminal Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

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

MONTGOMERY, C. J.

Appellee recovered a judgment for $10,000 on account of personal injuries sustained by his wife in a collision between a street car and an automobile in which she was riding. Appellant's motion for a new trial was overruled, and this ruling is the only assigned error urged upon our attention. A new trial was sought upon the grounds that the court erred in giving certain instructions, and that the damages awarded are excessive. The third instruction given advised the jury, in effect, that the only contributory negligence that could defeat the action would be contributory negligence on the part of the wife. It is suggested that contributory negligence on the part of the appellee would constitute a defense. Conceding the correctness of this proposition, it is not claimed that appellee was shown in this case to be in the slightest degree negligent, but on the contrary, it appears to be undeniably true that he was wholly free from fault in connection with the accident. The omission of any statement concerning negligence, if any, on the part of appellee, was manifestly harmless. Pittsburgh, etc., R. Co. v. Higgs, 165 Ind. 694, 76 N. E. 299, 4 L. R. A. (N. S.) 1081.

There was evidence to the effect that appellee's son, a boy 16 years of age, and residing in the family with his parents, was in the employ of an automobile company at a garage, and was directed to take a machine over on Meridian street and deliver it to a customer, and on the way stopped at 814 North West street for his mother, who had but twice before rode in an automobile, and proposed to take her to the family grocery. When a short distance from home, by a misturn of the tiller or lever by which the direction of the machine was governed, the automobile jumped the curb, and ran upon an open lawn, circled about among the trees and out to the street car track, where it stopped for a short time, and was struck by a passing car. It is argued that, if this minor son was the agent of appellee, his contributory negligence would bar a recovery, and that the third instruction given arbitrarily and wrongfully deprived appellant of the benefit of this theory of defense. If this point were well taken, a question upon which we intimate no opinion, it could not work a reversal of the cause, since the erroneous declaration of which complaint is made was incorporated in even stronger terms in the eighth and ninth instructions, given at appellant's request, and the error, if any, was accordingly invited by appellant. Duncan v. State, 171 Ind. -, 86 N. E. 641, and cases there cited.

The sixth and eighth instructions,...