Public Utilities Company v. Handorf

• Decision Date: 22 May 1916
• Docket Number: 22,699
• Citation: 112 N.E. 775,185 Ind. 254
• Parties: Public Utilities Company v. Handorf
• Court: Indiana Supreme Court

112 N.E. 775

185 Ind. 254

Public Utilities Company v. Handorf

No. 22,699

Supreme Court of Indiana

May 22, 1916

Rehearing Denied October 26, 1916.

From Warrick Circuit Court; E. M. Swan, Special Judge.

Action by Lee Handorf against the Public Utilities Company. From a judgment for plaintiff, the defendant appeals.

Affirmed.

Woodfin D. Robinson, William E. Stillwell and Kiper & Fulling, for appellant.

Edgar Durre, Clifford T. Curry and Caleb J. Lindsay, for appellee.

OPINION

Erwin, J.

This appeal is prosecuted from a judgment of $ 10,000 in favor of appellee for personal injuries sustained by him by reason of coming in contact with a street car of appellant. Appellant is a corporation operating a line of cars in the city Evansville. Appellee was a fireman in the employ of the city of Evansville.

The assignment here presents two alleged errors, viz.: (1) The error of the court in overruling the demurrer to the complaint; and (2) in overruling the motion for a new trial.

The complaint is in one paragraph and alleges, in substance, that on January 12, 1913, appellant was engaged in operating street cars on Second avenue in the city of Evansville; that the cars were propelled by electricity; that on said date there was in force in said city an ordinance permitting fire apparatus to be hauled through said city without any limit as to speed and providing that the drivers of all other vehicles should give the right of way to such fire apparatus; that there was also in force in said city an ordinance regulating the speed of electric cars and limiting them to eight miles an hour in the thickly settled streets and to fifteen miles per hour over any other street; that there was on said date an ordinance in force requiring cars operated by electricity to be first class and the equipment to be strictly first class; that it had been the custom for many years in said city, and it was the duty of the operators of all cars running over the streets to run the same slowly and carefully and to keep the same under control at the approach of all street intersections whenever a fire alarm was sounded; and for the purpose of apprising the operators of such street cars that there was an alarm of fire and danger of collision with fire apparatus at street intersections, electric light globes were installed at various points along said street car track, which globes lighted automatically when an alarm of fire was turned in. The complaint further alleges that on said January 12, 1913, appellant unlawfully and negligently operated a defectively equipped, second-class electric car through, in and along Second avenue, which street was a thickly settled street, at a high and dangerous rate of speed, and in excess of the speed limit as fixed by the ordinance of said city, without sounding a bell or otherwise giving any warning of its approach, thereby injuring plaintiff in the manner thereinafter described; that on said date, and for many years prior thereto, appellee was in the employ of the city as fireman and was riding on a hook and ladder truck on his way to a fire; that in order to reach the fire it was necessary for said apparatus to cross Second avenue on which appellant's cars were being operated; that while said hook and ladder truck was in the act of crossing said street on Franklin street, in a thickly populated portion of the city, appellant's servants negligently and unlawfully, and in violation of said ordinance and custom aforesaid, ran and propelled a second-class, inefficiently equipped car, the property of appellant, upon and against said fire apparatus upon which appellee was riding, overturning the same and pinioning appellee underneath it, breaking appellee's jaw on the right side of his face and dislocating the lower jaw on the left side, knocking out appellee's molar teeth, injuring and bruising his body and limbs, which resulted in loss of speech; that by reason of his injuries and suffering therefrom he has become a nervous and physical wreck; that his memory has been impaired; that by reason of his injuries he was confined to the hospital for a number of weeks; that he required medical attention for a long time and will require medical attention for a number of years to come; that his face has been disfigured and distorted, and the lower jaw has become dead, dumb and paralyzed; that the servants of appellant were in the line of their employment and knew, and by the exercise of ordinary care could have known, that there was a fire in said city and that there was danger of said car colliding at the intersection of said streets with the fire apparatus; that, at the time, the automatic red lights stationed along said car were burning brightly thereby signifying that there was a fire in said city, and that the car which injured appellee had passed the same; that notwithstanding said signals and knowledge of the same on the part of the servants of appellant they unlawfully, negligently and recklessly ran the car at a high and dangerous rate of speed along said street and across said intersection in excess of the speed limit of said city, and failed to keep the car under control so as to avoid collision with said fire apparatus so crossing said street; that said servants in charge of the car, by the exercise of ordinary care and prudence, could have seen the approach of the fire apparatus upon which plaintiff (appellee) was riding in ample time to stop the car and avoid the collision, but they negligently failed to do so; that said injuries were caused solely by reason of the negligence of defendants and their servants. Then follows a prayer for relief.

The specifications of the demurrer are: That the complaint was insufficient for the reason that it did not show the violation of any duty on the part of appellants toward appellee; that it did not show any negligence on the part of appellant; that it did not show that any negligence of appellant was a proximate cause of the injury complained of; that the complaint failed to show any negligence of appellant in the operation of the car at the time of the alleged injury; that the complaint failed to show that appellant was at the time and place in question operating the car at a rate of speed in violation of any ordinance of the city regulating the speed of cars; that the complaint showed upon its face that appellee was guilty of contributory negligence; that it showed plaintiff guilty of negligence which proximately contributed to his injury; that the complaint failed to show that at the time and place of the alleged injury appellee took any precautions to avoid the collision or prevent the accident; that the complaint showed upon its face the appellee could have avoided the accident by the exercise of ordinary care as the wagon on which he was riding approached the track; that the complaint shows that the accident resulted wholly from the negligence of the driver of the wagon. This demurrer was overruled.

We are of the opinion that the complaint is not subject to the infirmities claimed by appellant. It shows that appellee was in the discharge of a duty and in a place where he had a lawful right to be; that appellant was at the time of the accident violating a city ordinance as to the speed of the car; that appellant's servants were violating a duty in not stopping its car when it had notice, by reason of the red lights burning along its track, that a fire was somewhere in the city; that the ordinance provided that the drivers of all other vehicles on the streets were compelled to give the right of way to the fire apparatus; that while so operating its car in violation of the ordinance it came in contact with the wagon on which appellee was riding with such force as to overthrow it, not withstanding that it weighed 3,500 pounds; and that by reason of said acts appellee was injured.

The violation of a statute or the ordinance of a city is negligence per se. Jeffersonville Mfg. Co. v. Holden (1913), 180 Ind. 301, 305, 102 N.E. 21; Cincinnati, etc., R. Co. v. Baltimore R. Co. (1911), 50 Ind.App. 283, 98 N.E. 304. The complaint charges a duty owing by appellant, not only to appellee but to all persons upon the street, which it is alleged to have violated and by reason of its violation appellee was injured. The demurrer was properly overruled.

The motion for a new trial assigns as causes therefor that the verdict is not sustained by sufficient evidence and is contrary to law; that the court erred in giving certain instructions of its own motion; the giving of certain instructions tendered by appellee; the refusing to give certain instructions requested by appellant; that the damages are excessive; that certain evidence was improperly admitted, and that certain other evidence sought to be introduced on cross-examination by appellant was improperly excluded.

In the order presented by appellant our attention is first called to what is an alleged error in allowing the witness Goff to testify as an expert and give an opinion on the question as to the distance in which a car could be stopped going at a certain speed per mile. Appellant contends this was error for the reason that...