Red Cab v. White
| Decision Date | 25 January 1938 |
| Docket Number | 26980. |
| Citation | 12 N.E.2d 356,213 Ind. 269 |
| Parties | RED CAB, Inc., v. WHITE. |
| Court | Indiana Supreme Court |
Appeal from Circuit Court, Boone County; John H. Hornaday judge.
Rogers & Smith, of Lebanon, and Ruckelshaus & Ruckelshaus of Indianapolis, for appellant.
Thos McGee, of Indianapolis, and Ben M. Scifres and Roscoe Hollingsworth, both of Lebanon, for appellee.
This is an action on a complaint in two paragraphs by the appellee against the appellant, Phillias Gour, and Red Cab Company for personal injuries. The first paragraph charges that while appellee was walking across Illinois street in the city ofIndianapolis from the east to the west at the intersection of that street with Louisiana street, which intersection is immediately north of the railroad viaduct and west of the Union Station, the defendant Gour, while operating a taxicab for the appellant, without any warning, negligently and carelessly failed to slow its speed, 'but negligently, carelessly and recklessly, drove his said car into and against her,' thereby inflicting serious injuries of a permanent nature. That by reason thereof she suffered great mental and physical pain, and was compelled to spend the sum of $1,000 for hospital, nursing, and surgical treatment.
The second paragraph of complaint, in addition to the allegations contained in the first, charges that appellant operated the taxicab in violation of a city ordinance, which provides that at a crossing of the nature of the one at the Illinois and Louisiana street intersection, vehicles shall yield the right of way to pedestrians.
The issue was formed by an answer in general denial. There was a trial by a jury, verdict and judgment for the plaintiff in the sum of $2,500. Motions in arrest of judgment and for a new trial were filed and overruled. Appeal was taken to the Appellate Court. The errors relied upon for reversal are: (1) The court erred in overruling the appellant's motion for a new trial. (2) The court erred in overruling the appellant's motion for a venire de novo.
The first ground for a new trial discussed by appellant in its brief is based upon the alleged insufficiency of the evidence. It contends that there is no evidence to support the verdict and judgment, and that the appellee was guilty of contributory negligence. The record discloses that about 9 o'clock in the evening of June 10, 1934, the appellee alighted from the east side of a street car at the place designated above; that the street car was traveling north on Illinois street; that as soon as the car moved out of her way, the appellee started directly west across the street upon an unmarked lane for the use of pedestrians; that Illinois street is approximately 60 feet in width at that point; that a double street car track occupies the center of the street; that it is approximately 17 feet from the west rail of the street car track to the west curb of the street; that appellee passed over the street car tracks and looked north and south for approaching cars, and, seeing none, proceeded to cross the street; that when 3 or 4 feet west of the west rail of the street car track without any warning, she was run down by the taxi owned and operated by appellant; that the taxi was traveling south on the east side of the west half of Illinois street; that when the car came to a stop it was headed to the southeast, and was on the part of the street occupied by the street car tracks. The testimony of the witnesses places the speed of the taxi from 20 to 25 miles per hour.
The evidence further discloses that the location of the accident was in a closely builtup section of the city; that the street at that point was well lighted, and a person crossing the street could be seen easily; that the driver of the taxi testified that at the time of the accident he was conveying a passenger to a point south on Illinois street, but he did not testify that he delivered the passenger at any destination. No person testified as a witness who claimed to have been a passenger in the taxi at that time. It is further disclosed that the east side of Illinois street, north of where the accident occurred, was a taxi stand for taxies in taking passengers from the Union Station.
Can this court say, as a matter of law, that there was no evidence of negligence upon the part of the appellant? Considering the evidence most favorable to appellee, it will be seen that the taxi was traveling at a speed of 20 to 25 miles per hour in a closely builtup section of the city at a time and place when the traffic was 'fairly heavy'; that the taxi was being operated on the east half of the west half of Illinois street at 9 o'clock in the evening with the street well lighted; that if the taxi had been traveling on the west side of the street, it would not have struck appellee. Whether the taxi was being operated in the manner provided by statute, whether the operation was in a negligent and careless manner, and whether the driver was free from negligence are questions of fact to be determined by the jury.
Upon the question of the appellee's contributory negligence, the evidence discloses that she was crossing the street at an intersection, and, under the ordinance of the city in force at that time, she was given the right of way over the taxi. This was a question for the jury and not a question for the court to determine.
There is some evidence from which the jury might reasonable conclude that the appellant was guilty of negligence in the operation of the taxi, and that there was no evidence of contributory negligence upon the part of the appellee. In other words, more than one inference may be drawn from the facts. Therefore the question of negligence is one of fact for the jury to determine. Indianapolis Traction, etc., Co. v. Miller, 1913, 179 Ind. 182, 100 N.E. 449.
The Spencer Hotel is located on the northwest corner of the intersection of Illinois and Louisiana streets. Some men were sitting in chairs in front of the hotel at the time of the accident which occurred some 50 or 60 feet south of the hotel. The appellant examined one of these men as a witness for the defense. The witness was asked concerning a remark made to him by a man sitting by his side. Objection to the question was sustained. Appellant claims that this was error. There was no error in sustaining the objection for the reason that the declaration of a...
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