Union Traction Co. of Indiana v. Bowen

• Decision Date: 28 January 1914
• Docket Number: No. 8,186.,8,186.
• Citation: 103 N.E. 1096,57 Ind.App. 661
• Parties: UNION TRACTION CO. OF INDIANA v. BOWEN.
• Court: Indiana Appellate Court

57 Ind.App. 661

103 N.E. 1096

UNION TRACTION CO. OF INDIANA

v.BOWEN.

No. 8,186.

Appellate Court of Indiana, Division No. 2.

Jan. 28, 1914.

Appeal from Circuit Court, Clinton County; Joseph Combs, Judge.

Action by Robert Bowen by his next friend against the Union Traction Company of Indiana. Judgment for plaintiff, and defendant appeals. Affirmed.J. A. Van Osdol, of Anderson, and Sheridan & Gruber, of Frankfort, for appellant. Gavin, Gavin & Davis, of Indianapolis, for appellee.

LAIRY, C. J.

Appellee by his next friend brought this action in the trial court to recover damages for personal injuries, and obtained a judgment in his favor. The action of the trial court in overruling appellant's motion for a new trial is the only error upon which appellant relies for a reversal.

The facts disclosed by the record show that appellee at the date of his injury was a child of about eight years of age, and that he was struck and injured by one of appellant's cars at the intersection of Twenty-second street and College avenue in the city of Indianapolis. There is a double street car track on College avenue extending practically north and south, the east track of which is used by cars going north, and the west track by cars going south. The accident occurred about 8 o'clock in the morning, while appellee was on the way to a grocery store to do an errand for his mother. He approached College avenue from the west on the south side of Twenty-second street, and when he reached the curb on the west side of the avenue a street car, south-bound on the west track, had stopped on a line with the south side of Twenty-second street. Appellee passed behind the standing street car and stepped out upon the east track, where he was struck by an interurban car operated by appellant.

The negligence charged against appellant in the complaint is that it carelessly and negligently operated said car without giving any signal or warning of its approach, and that it carelessly and negligently ran said car at a high and dangerous rate of speed, to wit, 25 miles an hour, against and upon the plaintiff. It is also alleged that a street car had just passed going north on the east track and that appellant negligently ran its interurban car following such street car within a distance of 50 feet at a high rate of speed and without giving any signal or warning of its approach.

The court under the evidence submitted the question of appellant's negligence to the jury, and also submitted to the jury the question as to whether or not appellee was guilty of contributory negligence. In addition to this, the court instructed the jury as to the law applicable to the doctrine of “last clear chance.”

Appellant does not question the correctness of the court's proceedings in so far as they relate to the evidence and the instructions bearing upon its negligence or upon the contributory negligence of appellee, but it asserts that the court erred in submitting to the jury the question as to whether or not appellant had the last clear chance of avoiding the injury, and in instructing the jury as to the law relating to that question.

[1] The first point presented by appellant is that the pleadings do not present any issue under which this question could be properly presented or decided. In the case of Indianapolis Street Railway Co. v. Marschke, 166 Ind. 490, 77 N. E. 945, the Supreme Court of this state held that a general charge in the complaint to the effect that the defendant negligently ran its car against and upon the plaintiff thereby causing his injury is sufficient to authorize proof of any negligence in the operation of the car which resulted in its being run against and upon the plaintiff, including proof that the persons in charge of the car were negligent in not availing themselves of the last clear chance to avoid the injury. The principle announced has been recognized and applied in a number of decisions by this court. Southern Ind. R. Co. v. Drennen, 44 Ind. App. 14, 88 N. E. 724;Mortimer v. Daub, 98 N. E. 845.

[2] The doctrine of last clear chance was discussed at some length in a recent decision of this court, Indianapolis Terminal & Traction Co. v. Croly, 96 N. E. 973. It is not our purpose at this time to discuss the question further than to say that the case referred to does not hold, as appellant seems to think, that contributory negligence is never a defense where the liability of the defendant is based upon this doctrine. This case attempts to draw a distinction between the general duty owing to all persons and the particular duty which arises in favor of a particular person who is exposed to immediate danger from...