Mortimer v. Daub
| Decision Date | 06 June 1912 |
| Docket Number | 7,579 |
| Citation | 98 N.E. 845,52 Ind.App. 30 |
| Parties | MORTIMER, RECEIVER, v. DAUB |
| Court | Indiana Appellate Court |
Rehearing denied December 20, 1912.
From Superior Court of Allen County; Owen N. Heaton, Judge.
Action by Henry Daub against James D. Mortimer, receiver of the Toledo & Chicago Interurban Railway Company. From a judgment for plaintiff, the defendant appeals.
Affirmed.
William L. Taylor, James H. Rose and William A. Campbell, for appellant.
Sharpless & Atkinson and Harper & Eggeman, for appellee.
This is an action for personal injuries. The complaint was in three paragraphs, a demurrer to each of which was overruled. After the case proceeded to trial, the first paragraph was dismissed, and the case was submitted to the jury on a denial to the second and third paragraphs. The jury returned a general verdict for appellee in the sum of $ 1,000, with answers to interrogatories.
As no question is raised as to the sufficiency of either paragraph of the complaint, we set out briefly only enough of the averments to present the questions raised by the appeal.
These averments, common to both paragraphs, are that appellant on the day that appellee was injured, was operating interurban cars over King street in the city of Garrett which was one of the principal streets of said city, extending in an easterly and westerly direction through a populous part thereof; that such street was much used by the citizens of said city; that it was narrow, and the track of said railway company was in or near the center thereof, and the space between the outer rails and the curbing on either side was narrow, affording barely sufficient room for interurban cars to pass a wagon or other vehicle traveling on said street; that appellee on the day of his injury was driving a team of mules toward the west over said street, and one of appellant's interurban cars was approaching him from the west; that each was approaching the other on a straight and level part of said street, where the view was unobstructed for a distance of a quarter of a mile or more; that said car rapidly approached appellee, and was being operated "at an excessive, negligent and careless rate of speed of about thirty miles an hour thereby making traffic on said street dangerous, * * * and endangering the lives and limbs of people and * * * frightening horses * * * of ordinary gentleness;" that "by reason of said excessive * * * rate of speed of said car the same caused a great deal of unusual, excessive and unnecessary noises calculated to frighten horses or mules of ordinary gentleness, which at said time did frighten plaintiff's mules which fact was seen, or could have been seen by the servant * * * operating said car by the exercise of ordinary care," and although such servant knew, or might have known, that said mules were frightened by reason of the approach of said car in said manner, he did not slacken the speed of said car, but continued to approach in the same rapid manner, causing said mules to become more frightened and unmanageable, "then and thereby causing said mules to turn to the left upon the tracks of said company, and said car being so negligently operated as aforesaid ran against the said span of mules, knocking one of them down against the wagon tongue * * * * and on account of the sudden jolt" appellee was thrown forward, etc., and injured.
The third paragraph contains additional averments to the effect that said city of Garrett, at the time of appellee's injury, had in force and effect an ordinance prohibiting the running of cars within the limits of said city at a higher rate of speed than ten miles an hour, and that by the terms of the franchise granted by said city and accepted by the railway company, under which it obtained the right to run its cars over said street, said company was prohibited from running its cars faster than ten miles an hour.
In presenting this appeal, appellant presents and relies exclusively on the following grounds of his motion for a new trial, viz.: (1) That the verdict is not sustained by sufficient evidence, and (2) that the trial court erred in giving and refusing certain instructions.
The only point which appellant attempts to raise by the first ground of his motion is that the evidence shows that the interurban car was not running at a speed of over eight or ten miles an hour, and that the collision was purely an accident, caused by a sudden shying of the mules toward the car. While there is evidence tending to support appellant in his contention, there is also some evidence supporting the averments of the complaint. There was some evidence in support of each of the following facts, viz.: That at the time of said collision there was an ordinance in full force in said city which prohibited the running of cars within the limits of the city at a higher rate of speed than ten miles an hour; that the car in question was traveling at a high rate of speed; that as it approached appellee's team it made a loud noise, and raised considerable dust; that appellee's mules became frightened at the approaching car; that appellee's team was in view of the motorman when 600 or 650 feet away; that the car was several hundred feet away when the mules commenced to back; that the motorman saw the team when about 500 feet away, but did not notice them afterwards until just before the collision, when about 25 feet away; that appellee endeavored to control his team, and signalled the motorman in the car when 300 feet away to stop; that the space between the outer rail of the car track and the curb was only about 12 feet; that the speed of the car was not slackened until after it struck appellee's team. Several of the witnesses testified that the car was running at a speed of twenty-five or thirty miles an hour.
Even though it be conceded, as appellant contends, that at the time of the injury to appellee, said car had been slowed down to a speed of three or four miles an hour, there is evidence from which the jury may have found that appellee's mules were frightened by the unusual noise and high rate of speed as it approached them, and that such speed was in excess of that allowed by the city ordinance. This, in connection with the other facts supported by the evidence in the case, was sufficient to charge the railway company with liability, since it is negligence per se for a railroad company to operate its cars in violation of a statute or municipal ordinance regulating the speed thereof, and when such negligence is the proximate cause of injury to a person who is himself without fault, the company is liable in damages. 1 Thompson, Negligence § 10; 2 Thompson, Negligence § 1900; Pennsylvania Co. v. Horton (1892), 132 Ind. 189, 31 N.E. 45; Shirk v. Wabash R. Co. (1896), 14 Ind.App. 126, 42 N.E. 656; Indiana, etc., R. Co. v. Barnhart (1888), 115 Ind. 399, 16 N.E. 121.
It is a well-settled rule that where there is conflict in the evidence the appellate court will not disturb the jury's finding in the general verdict, if there is any evidence tending to support each material issue. Republic Iron, etc., Co. v. Berkes (1904), 162 Ind. 517, 526, 70, 70 N.E. 815 36 N.E. 815; Delaware, etc., Tel. Co. v. Fiske (1907), 40 Ind.App. 348, 81 N.E. 1100.
Appellant next complains of instruction No. 4, given by the court at the request of appellee. This instruction told the jury that "while it is true that those in charge of a street car being operated upon a street car track on and through a public street are not required to immediately stop the car upon seeing a horse or team at the side of the street manifesting fright, nevertheless, it is the duty of the person operating such car to be constantly on the alert and if he discovers a person so situated that injury must follow unless the car is stopped, it is such operator's duty to make all reasonable efforts to stop said car and if he fails to do so, the company will be liable for any and all damages that may result." Appellant urges...
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