Robards v. Indianapolis St. Ry. Co.

• Decision Date: 28 January 1903
• Citation: 66 N.E. 66,32 Ind.App. 297
• Parties: ROBARDS v. INDIANAPOLIS ST. RY. CO.
• Court: Indiana Appellate Court

32 Ind.App. 297

66 N.E. 66

ROBARDS

v.INDIANAPOLIS ST. RY. CO.¹

Appellate Court of Indiana, Division No. 2.

Jan. 28, 1903.

Appeal from circuit court, Marion county; Henry Clay Allen, Judge.

Action by Ezra E. Robards against the Indianapolis Street Railway Company. From a judgment in favor of defendant, plaintiff appeals. Affirmed.

McBride & Denny, for appellant. Winter & Winter and W. H. Latta, for appellee.

COMSTOCK, J.

Appellant brought this action against appellee to recover damages for personal injuries alleged to have been occasioned by appellee's negligence. The complaint consists of two paragraphs. The first charges negligence; the second, willfulness, -upon the part of appellee's servants. The jury returned a verdict in favor of appellant upon the first paragraph, assessing his damages at $700. With the general verdict, answers to interrogatories were returned. Upon motion the court rendered judgment in favor of appellee on these answers, notwithstanding the general verdict, and judgment against appellant for costs. The assignment of errors questions these rulings. The first paragraph avers that appellee was, at the time he received the injury complained of, riding a bicycle on Illinois street, in the city of Indianapolis, when he was run into by one of appellee's electric cars. No question is presented on the complaint, and a further statement of its averments is unnecessary.

In sustaining appellee's motion for judgment, the trial court decided that there was an irreconcilable conflict between them and the general verdict. The answers to interrogatories show that the plaintiff was struck by one of defendant's electric cars, and thrown to the pavement, while riding a bicycle along the outside and near to the track of the defendant company on North Illinois street, near Market street, in Indianapolis. The motorman in charge of said car saw the plaintiff near to the said track on which said car was running in time to have stopped said car before overtaking plaintiff, but made no effort to stop it. No alarm or warning of the approach of said car just prior to the collision was given. Plaintiff did not know that said car was approaching him before it struck him. The car was going south, and the plaintiff was also going south, when he was struck. Said motorman had reason to believe, after he saw plaintiff on his bicycle near the outer rail of said car track, and before the collision, that the car was liable to come in contact with plaintiff, or the bicycle on which he was riding, unless he slackened the speed of said car, or gave the plaintiff warning of its approach. The motorman knew for some time before the collision that the plaintiff's body, as he was riding near said track, projected far enough over to the east to come in contact with the end or side of the said car, if he, said motorman, should continue the movement of said car, and plaintiff should continue on his way the same distance from said track until said car should overtake him. On December 10th, the day appellant was injured, Illinois street, in the city of Indianapolis, was about 60 feet wide from curb to curb, extending both north and south from Market street in a straight line for many squares. The entire roadway of said street was paved with asphalt from curb to curb, and open and in use for general travel. In said street there were two street railway tracks laid even with the surface of the street, each about 4 feet 8 1/2 inches from rail to rail, and so placed as to be equally distant from the center line of the street, and about 5 feet apart. The cars going south on Illinois street use the west track, and those going north the east track, and all of said cars projected over the rails of the track upon which they ran about 10...