Picken v. Miller
| Decision Date | 27 May 1915 |
| Docket Number | 8,585 |
| Citation | 108 N.E. 968,59 Ind.App. 115 |
| Parties | PICKEN v. MILLER |
| Court | Indiana Appellate Court |
From Superior Court of Marion County (87,850); Charles J. Orbison Judge.
Action by Francis S. Miller against William N. Picken. From a judgment for plaintiff, the defendant appeals.
Reversed.
Joseph E. Bell and George Shirts, for appellant.
Clinton B. Marshall and W. C. Stover, for appellee.
This is an action brought by appellee to recover damages for injuries to himself and to his motorcycle, alleged to have been caused by appellant's negligence.
The complaint is in three paragraphs. The averments of the first paragraph are in substance as follows: On the day of his injury appellee was riding his motorcycle east on Michigan Street, a street fifty feet in width running east and west in the city of Indianapolis, and appellant was driving his automobile north on Meridian Street, a street about the same width running north and south in said city. A collision occurred at the intersection of such streets. When approaching the intersection of said streets and driving carefully and when within fifty feet of the west line of Meridian Street, appellee looked both to the north and to the south and saw appellant in his automobile approaching from the south and about 300 feet distant. Appellee proceeded to cross Meridian Street slowly and carefully, and when east of the center thereof he saw appellant approaching him at a high, excessive and unlawful rate of speed and in order to avoid a collision with said automobile, swerved his motorcycle to the left and northward. Appellant negligently and carelessly drove his automobile "towards * * * plaintiff at a high and unlawful rate of speed, to wit, thirty miles per hour, and did then and there when near * * * plaintiff, negligently and carelessly turn the same sharply to the right and eastward and directly towards * * * plaintiff and caused the course of said automobile to be changed from said Meridian into said Michigan Street and to the eastward of said Meridian Street, and did negligently and carelessly drive * * * said automobile with great force and violence upon, against and over * * * plaintiff and his motorcycle, knocking him off," etc.
The second paragraph of complaint is substantially the same as the first with the exception that it proceeds on the theory that appellee was in a position of danger and that appellant in the exercise of ordinary care could have avoided the collision by swerving to one side of appellee's motorcycle. The averments which distinguish it from the first paragraph are in substance as follows: Appellee when crossing Meridian Street in order to get out of the course of appellant and give him ample room to pass to the rear and to the west, veered his motorcycle to the north and rode and drove the same across the center of Meridian Street; that although appellant had ample time and room to drive his automobile to the west and rear of appellee, he carelessly and negligently turned the same to the east and right and drove the same carelessly, negligently and at a high and dangerous rate of speed into said Michigan Street and with appellee.
The third paragraph seeks to recover damages for the motorcycle.
To each of such paragraphs appellant demurred for want of facts, which demurrers were overruled. The only answer filed was a general denial. There was a trial by a jury, and a general verdict for appellee, together with answers to interrogatories.
A motion for judgment on the answers to interrogatories and for a new trial, filed by appellant, were each overruled and judgment rendered on the verdict. From such judgment appellant appeals and assigns the following errors: (1-3) Error of the court in overruling appellant's separate demurrer to each paragraph of appellee's complaint. (4) Error of the court in overruling appellant's motion for judgment on the answers to interrogatories. (5) Error of the court in overruling appellant's motion for new trial. The first, third and fourth assigned errors are not presented by appellant's brief and are therefore waived.
The second assigned error challenges the ruling on the demurrer to the second paragraph of complaint. It is insisted that this paragraph shows: (1) that appellee was guilty of contributory negligence in attempting to cross the street in front of an automobile which he saw when fifty feet from the street, and which he then knew was going at a high and dangerous rate of speed; (2) that such paragraph is not sufficient under the doctrine of last clear chance. The averments of this paragraph are not open to the first criticism. While it is true, that they show that appellee when fifty feet away from the crossing saw appellant's automobile approaching 300 feet distant, they do not show that he, at that time, knew that it was approaching at an excessive speed. As to the second objection it is sufficient to say that the general averment of the paragraph, above indicated, to the effect that the appellant carelessly and negligently drove his automobile on and against appellee, was sufficient to invoke the application of the doctrine of last clear chance. Indianapolis St. R. Co. v. Marschke (1906), 166 Ind. 490, 496, 77 N.E. 945; Indianapolis Traction, etc., Co. v. Kidd (1906), 167 Ind. 402, 410, 79 N.E. 347, 7 L.R.A. (N. S.) 143, 10 Ann. Cas. 942; Mortimer v. Daub (1912), 52 Ind.App. 30, 38, 98 N.E. 845, and cases cited; Cleveland, etc., R. Co. v. Van Laningham (1913), 52 Ind.App. 156, 167, 97 N.E. 573, and cases cited; Union Traction Co. v. Bowen (1915), 57 Ind.App. 661, 103 N.E. 1096; Southern Ind. R. Co. v. Drennen (1909), 44 Ind.App. 14, 19, 88 N.E. 724.
It is next insisted that instruction No. 9 given by the trial court on its own motion was erroneous. Several objections are urged against this instruction, the one most strongly insisted on, being to the effect that such instruction is predicated on the "last clear chance doctrine"; that neither paragraph of the complaint is sufficient on such theory, and hence that such instruction is not applicable to the issues. What we have said in our discussion of the sufficiency of the second paragraph of complaint disposes of this contention. The instruction, when read in its entirety, and applied to the second paragraph of the complaint, is not open to any of the objections made against it. Instruction No. 13 is objected to. An instruction in practically the same words was disapproved by this court in the case of Elgin Dairy Co. v. Shepherd (1913), 103 N.E. 433, but that case was taken over by the Supreme Court and the decision of this court reversed and the instruction approved. See Elgin Dairy Co. v. Shepherd (1915), 183 Ind. 466, 108 N.E. 234, 109 N.E. 353.
Instruction No. 26 is objected to by appellant...
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