Union Traction Co. of Indiana v. Gaunt

• Citation: 130 N.E. 136
• Decision Date: 11 March 1921
• Docket Number: No. 10608.,10608.
• Parties: UNION TRACTION CO. OF INDIANA v. GAUNT.
• Court: Court of Appeals of Indiana

130 N.E. 136

UNION TRACTION CO. OF INDIANA

v.GAUNT.

No. 10608.^*

Appellate Court of Indiana.

March 11, 1921.

Appeal from Circuit Court, Adams County; David E. Smith, Judge.

Action by Arthur L. Gaunt against the Union Traction Company of Indiana. Judgment for plaintiff, and defendant appeals. Reversed and remanded, with instructions.

J. A. Vanosdal, of Anderson, Warner & Warner, of Muncie, C. J. Lutz, of Decatur, and John M. Smith, of Portland, for appellant.

John F. La Follette and S. A. D. Whipple, both of Portland, for appellee.

ENLOE, J.

This was an action by the father, appellee, against appellant for damages for the alleged negligent killing of his daughter, aged 12 years.

It appears from the averments of the complaint that the said child at the time it was struck and killed was on its way to school, riding with a number of other children in an inclosed school wagon furnished by the school authorities. The accident occurred at about 7:10 a. m. The said wagon was struck by a car known as the work or repair car at a highway crossing.

The complaint, which was in two paragraphs, alleged in the first paragraph thereof negligence in the following particulars: (1) Negligence in operating and running said car at a reckless rate of speed, to wit, 50 miles per hour; (2) failure to sound whistle, ring bell, or give any signal of its approach to said crossing; (3) running said car (alleged in complaint to have been a freight or express car) without reference to any schedule of time; (4) negligence of the servants operating said car in failing to slacken the speed thereof after they saw said wagon approaching said crossing and thereby preventing said accident. In the second paragraph there is the further allegation that-

“Said employees recklessly and without any thought of the saving of human life, and with no regard for the rights of the public, failed and refused to stop said car, or to slacken the speed thereof after they saw and had knowledge that said school wagon was crossing said electric line, and knowing that unless they did stop said car or slacken the speed thereof that an accident would occur.”

[1] The finding of the jury in answers to interrogatories, that the motorman sounded the usual road crossing whistle for the crossing in question, that, upon discovering that the driver of said hack was attempting to cross said track, he threw off the current and immediately applied the air brakes in an attempt to stop said car and prevent the said accident, was a finding against appellee, so far as said last-quoted allegation is concerned, and the question of willful injury need not be further noticed.

The complaint was answered by general denial, and the issues thus formed were submitted to a jury for trial, which returned its verdict in favor of the appellee and assessed his damages at $1,775, and also returned its answers to interrogatories submitted to it by the court.

The appellant unsuccessfully moved for judgment in its favor, upon the answers of the jury to said interrogatories, and also for a new trial, and now prosecutes this appeal and urges as error the action of the court in overruling each of said motions.

[2] The general verdict necessarily decides all material issues in favor of the appellee, and the motion for judgment on the answers to interrogatories could not have been rightfully sustained, if the seeming antagonism between said answers and the verdict could possibly have been reconciled, or removed, by any legitimate evidence admissible under the issues. Farmers, etc., Co. v. Stewart, 167 Ind. 544, 79 N. E. 490. A careful examination of said interrogatories leads us to conclude that there is no such conflict in this case as to entitle appellant to have had its said motion sustained.

It is next urged that the court erred in not sustaining the motion for a new trial for the reasons: (1) That the said verdict was not supported by sufficient evidence; and (2) error in giving certain specified instructions.

The fourth and ninth instructions given by the court at request of appellee were severally as follows:

“No. 4. The court instructs you that where a pupil or school child rides in a school wagon driven by a person who is the driver and has control of such wagon without any authority on the part of such child or pupil to direct or control the conduct or movements of the driver of such school wagon, and without any reason on the part of such child to suspect the prudence or competency of the driver of such school wagon to drive the same in a careful or skilled manner, and if such school child itself exercised reasonable care, the father of such child may recover from a third person or corporation whose neglect of duty has resulted in injury to such child so riding in such school wagon, even if the negligence of the driver of the school wagon contributed to the injury, and in this case you are instructed that if you should find from a preponderance of the evidence that the said Maggie Gaunt at the time and place charged in the plaintiff's complaint was riding as a pupil in said school wagon, which was then and there being driven by Peter Kanoth, and if you further find that the child, Maggie Gaunt, had no opportunity to direct or control and did not direct or control the conduct or movements of the driver of said school wagon in the driving and management thereof, and if you should further find that the said Maggie Gaunt had no reason to suspect and did not suspect the competency or prudence of the driver of such wagon in operating and driving the same in a careful manner, then I instruct you, if you further find that the said Maggie Gaunt while exercising reasonable care for her own safety was injured and killed by want of reasonable care on the part of the defendant company, its agents and servants as averred in the complaint, then if you further find that the plaintiff is otherwise entitled to recover, he should not be denied recovery on account of the negligence or lack of skill, if any, of the driver of such school wagon contributing to her injury and death.”

“No. 9. The negligence, if any, of...