Indianapolis Traction & Terminal Co. v. Crawley

• Decision Date: 15 November 1911
• Docket Number: No. 7,322.,7,322.
• Citation: 51 Ind.App. 357,96 N.E. 392
• Court: Indiana Appellate Court
• Parties: INDIANAPOLIS TRACTION & TERMINAL CO. v. CRAWLEY.

51 Ind.App. 357

96 N.E. 392

INDIANAPOLIS TRACTION & TERMINAL CO.

v.CRAWLEY.

No. 7,322.¹

Appellate Court of Indiana, Division No. 2.

Nov. 15, 1911.

Appeal from Circuit Court, Hamilton County; Ira W. Christian, Judge.

Action by Charles W. Crawley against the Indianapolis Traction & Terminal Company. From a judgment for plaintiff, defendant appeals. Reversed, with directions.F. Winter, Kane & Kane, and W. H. Latta, for appellant. M. M. Bachelder, for appellee.

ADAMS, J.

The appellee was injured on April 6, 1908, being struck by a street car operated by appellant. At the time of his injury, appellee was a street cleaner in the employ of the city of Indianapolis, and was engaged in cleaning that part of Central avenue near Thirty-Third street lying between the west rail of the car tracks and the west curb of the paved street. In the performance of his work, appellee used a steel shovel pan, about 18 inches wide, with a wooden handle 6 feet long. This pan he pushed along the paved street until filled, when he emptied the same at the curb. It is charged in the complaint that the motorman operating the car ran the same at a speed of about 20 miles an hour; that the motorman did see, or could have seen, the appellee for a distance of three or four squares, by the use of due diligence; but that said motorman carelessly operated said car southward on the west track at the same rate of speed, without giving any signal or warning, and knowing that appellee was not aware of the approach of the car; that by virtue of the carelessness and negligence of the appellant, and its motorman, the appellee was struck and injured. As the appellant does not seriously question the complaint, and as we think the same clearly states a cause of action, it is not necessary to set out the complaint in greater detail. The issue was made by an answer in denial, and the cause was submitted to a jury, resulting in a verdict for appellee. Motion for a new trial was overruled, and judgment rendered on the verdict. The only error assigned and argued is that the court erred in overruling appellant's motion for a new trial.

The account of the injury, as given by the appellee himself on the witness stand, is: That on the morning of the injury he had started to clean the paved part of Central avenue, west of the car tracks, at Thirty-Fourth street; that he pushed his pan southward from Thirty-Fourth street about 300 feet, when he emptied it at the curb; that he then returned and continued to push the pan along the side of the west track; that he had his left foot on the west rail of the track, as he proceeded southward; that, when he entered on the track, he looked north, and there was no car coming; that there was nothing to obscure his view for a distance of 300 or 400 feet; that the pan was making a noise, the pavement was rough, and he could only proceed slowly; that he did not see and did not hear the car approaching, and did not hear any gong or other warning; that at the time he had good eyesight and good hearing; that he had filled his pan, and was in the act of turning the same to the curb, when he was injured; that he was struck in the right side, when his face was practically to the west; that he was struck by the front of the car, but was not struck by the guard; that the handle of the shovel was about at his waist line, and projected beyond his body probably six inches.

The view of the case taken by the appellant is that appellee, as the car approached, was not standing in such close proximity to the track as to be struck by the car, until after the front end passed, and that in turning to the west he brought the handle of his shovel in contact with the middle of the car, which resulted in his injury. This view is supported by the physical fact that the appellee was not struck by the fender or guard, which the evidence shows was the same width as the car. If appellee had been standing on the track or near enough to the track to be struck by the car, he would have been struck first by the fender. The appellee, however, insists that he was struck by the front end of the car, and this view is supported by the verdict of the jury.

The appellant earnestly insists that the fourth instruction tendered by appellee, and given by the court to the jury, is erroneous. This instruction is long, and intended to cover the facts and the law of the case according to the theory of the appellee. After setting out the relative rights of the parties, the instruction proceeds: “And I instruct you that if from the evidence you find that this plaintiff at said time of said injury was in the employ of the city of Indianapolis for the purpose of and engaged in cleaning the said street in question in said city, and was employed for the purpose of cleaning all that part of said street which lies between the west edge of the west rail of the west tracks on said street and the west curb, and at the time of said injury was upon the west rail of said track, or so close thereto that a car passing thereon could not pass without striking him, and while in said position he was cleaning such part of said street as the city required him to clean, then I instruct you that the plaintiff had a right to be at said place at said time, and the rights of the street car company were not superior to the rights of said plaintiff at said time. And if you further find from the evidence that when the plaintiff entered upon said place he used the precaution and looked north for the purpose of ascertaining whether any street cars were in sight and that none were in sight, and there was an unobstructed view between him for a distance north of 300 feet or more, and he then entered upon said track and continued southward pushing a steel pan shovel upon the brick and rail and adjacent pavement thereto, which shovel was making a noise, and that he did not hear any approaching cars or any gong sounded of...