Union Traction Co. of Indiana v. Smith
| Decision Date | 11 May 1920 |
| Docket Number | No. 10343.,10343. |
| Citation | 74 Ind.App. 345,127 N.E. 308 |
| Parties | UNION TRACTION CO. OF INDIANA v. SMITH. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Hamilton County; Ernest E. Cloe, Judge.
Action by John Waller Smith against the Union Traction Company of Indiana. Judgment for plaintiff, and defendant appeals. Reversed, with instructions to grant new trial.
J. A. Van Osdol, of Anderson, and Frederick E. Matson, Ralph K. Kane, James A. Ross, Robert D. McCord, and A. A. Schreiber, all of Indianapolis, for appellant.
Ira W. Christian, Floyd G. Christian, and Ralph H. Waltz, all of Indianapolis, for appellee.
Action by appellee to recover damages for personal injuries sustained by the negligence of appellant. The first paragraph of complaint avers that:
Appellant operated an electric interurban line from Indianapolis north through Noblesville, and maintained a local stop at a place called Kinsey's Crossing about two miles south of Noblesville, where its tracks were crossed at right angles by a highway. Appellee presented himself at said station on November 18, 1916, at about 5 o'clock in the evening, to take passage on one of appellant's local cars, and after waiting some time heard a car approaching said stop. He took a position near the track, and attempted to signal the car to stop, and, while in that position on or near the track, and all the time looking in the direction of the approaching car, he was struck by the car and injured. Appellant required those about to take passage at said station upon said cars to stand near the railroad track, and to signal said cars, as they approached said station to attract the attention of the servants of appellant in charge of said cars. Appellee, after arriving at said station and hearing the approach of said car, stepped out near the track, in a place provided by appellant, signaled said car, and attempted to attract the attention of appellant's servants in charge of said car. While he was so signaling, the appellant's servants in charge of said car negligently and carelessly failed to heed said signals given by appellee, although said servants saw, or could in the exercise of ordinary care and under the circumstances have seen, said signals, and negligently and carelessly ran said local car without any lights, or headlights on the front of said car, at the high and dangerous rate of speed of 50 miles per hour, through and past said station. At the time said car arrived at said station it was after nightfall and very dark, so that objects and surroundings were invisible, and on account of the absence of any lights or headlights upon the front of said car it was impossible for appellee to see the approach of said car, or to judge or determine the distance or speed of the same as said car approached said station, or the exact location of said track, so that as a proximate result of the negligence and carelessness of appellant, the corner of said car struck appellee, and threw and hurled him to the ground a great distance from said track, greatly injuring him, for which injuries he asks judgment in the sum of $25,000. Appellee at all times exercised due care, and had appellant slackened the speed of its car, and had it brought said car to a stop at said crossing, as required by appellee's signals, appellee would have had ample time in which to have avoided injury.
The second paragraph of complaint was dismissed. The third paragraph avers, in addition to the facts averred in the first paragraph, that appellant's motorman in charge of said car, while acting within the scope of his employment and operating said car, saw the signal of the appellee and discovered that the appellee was so close to said railway track that if said car proceeded, the side thereof would strike appellee, and that such motorman observed said appellee's position and danger in time to control and stop the car, and in time to have prevented striking the appellee and injuring him, but that such motorman negligently and carelessly ran said car upon appellee without attempting to stop the same, thereby injuring him.
After demurrer to the first and third paragraphs of complaint was overruled, appellant answered in general denial, and trial was had before a jury, which returned a verdict in appellee's favor in the sum of $2,500, on which judgment was rendered. After appellant's motion for a new trial was overruled, it prosecutes this appeal, assigning this ruling and the action of the court in overruling the demurrer to each paragraph of the complaint, as error.
[1][2] Because of the averments that it was impossible for appellee to see the approach of the car, and that appellee did not know the exact location of the track, near which he had taken a position, we hold the complaint good against demurrer, but though there was no error in overruling the demurrer to each paragraph of complaint, the appellee cannot eventually be helped by such ruling. He testified that his eyesight...
To continue reading
Request your trial