Roberts v. Terre Haute Elec. Co.
| Decision Date | 14 February 1906 |
| Docket Number | No. 5,558.,5,558. |
| Citation | 37 Ind.App. 664,76 N.E. 895 |
| Parties | ROBERTS v. TERRE HAUTE ELECTRIC CO. |
| Court | Indiana Appellate Court |
Appellee's counsel support its petition for a rehearing by reference to the well-established doctrine that a judgment, which is shown to be correct upon the facts, will not be reversed on account of uninfluential error. It is true, as they contend, that, in the absence of evidence tending to establish negligence upon the part of the defendant, the exclusion of evidence illustrating the care exercised by appellant's ward does not afford cause for reversal. The candid and intelligent argument directed to these propositions may not fairly be ignored. It is averred in the complaint that appellee ran a train consisting of two cars backward along Ninth street, around a curve and into Wabash avenue, a street running at right angles to Ninth street, while a parade of citizens was passing and said streets were filled at that place with spectators; that it negligently backed said train around said curve and over said streets, and in thus doing knocked appellant's ward down and ran the car over him, inflicting the injuries complained of. It is also averred that appellee negligently failed to have a lookout on the nonmotor car thus pushed upon said ward, and that it negligently placed the motorman where he could not keep a lookout.
The effect of the evidence is limited by the averments of the complaint. It does not appear that the absence of a lookout or the inability of the motorman to see the track caused or contributed to cause the injury complained of. The averment that the train was negligently started and backed around the curve requires the consideration of attendant circumstances, and its quality is largely determined by reference to them. A parade was passing over the streets, and a considerable number of spectators were present. The car which ran upon appellant's ward was a nonmotor freight car, loaded and pushed west by a motor car attached. As these cars approached the place where the accident occurred, they were upon the north one of the two tracks maintained by appellees in said streets. A passenger car was at the same time being run over the south track in an opposite direction. The boy, as the east-bound car passed, crossed the south track in its rear, and, running, stumbled and fell upon the north track ahead of the freight car aforesaid, which ran upon him. Upon a motion for a peremptory instruction, the court is bound to accept as true all facts which the evidence tends to prove, and to draw, against the party requesting such instruction, all inferences which the jury might...
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