Moran v. Leslie

• Decision Date: 16 February 1904
• Citation: 70 N.E. 162,33 Ind.App. 80
• Parties: MORAN v. LESLIE.
• Court: Indiana Appellate Court

33 Ind.App. 80

70 N.E. 162

MORAN

v.LESLIE.^*

Appellate Court of Indiana, Division No. 2.

Feb. 16, 1904.

Appeal from Circuit Court, Gibson County; O. M. Welborn, Judge.

Action by Frank Leslie against Harold D. Moran, as receiver, etc. From a judgment in favor of plaintiff, defendant appeals. Reversed.

Gilchrist, De Bruler & Welman and L. C. Embree, for appellant. C. M. Seiler, Funkhouser & Funkhouser, G. K. Denton, and W. E. Stilwell, for appellee.

ROBY, J.

This is an action brought by the appellee against the appellant to recover damages for personal injuries alleged to have been sustained by the appellee by reason of a collision of a street car operated by servants of the appellant with a wagon which the appellee was driving, and from which he was thrown by the collision while attempting to cross the track of the street railroad. The single assignment of error is that the court erred in overruling appellant's motion for a new trial. Under this assignment appellant argues that the verdict of the jury is not sustained by sufficient evidence; that the court erred in instructions given at its own instance and at appellee's request, and in refusing those requested by appellant. Appellee had a verdict for $3,000, remitted $600, judgment rendered for $2,400.

The Union Depot at Evansville is situated at the southeast corner of Main and Eighth streets. At its north end there was, when appellee received his injuries, a paved driveway 47 feet wide and 50 feet deep, ending at the railroad platforms, where mail and baggage are unloaded. Double street railway tracks are located on Main street west of said building and driveway. The sidewalk between the building and the car tracks was 11 feet wide. The space between the car track and the sidewalk was about 12 feet, and at the time of the accident was occupied by cabs and wagons. Appellee was the driver of a mail wagon covered and with a wire netting back of the seat. A train due at 9:35 p. m. was 35 minutes late, so that he had, after receiving mail from it, only 17 minutes in which to drive to the post office, and thence to the L. & N. Depot. A mail clerk assisted him in loading, and got into the seat with him. They drove out of the passageway and upon Main street, when they saw a street car 30 feet south, and coming north. The head of the horse was over the first rail of the east car track upon which track the said car was approaching, and appellee either stopped or checked the horse to allow...