Union Traction Co. of Indiana v. Wynkoop
| Decision Date | 18 November 1926 |
| Docket Number | No. 12504.,12504. |
| Citation | 154 N.E. 40,90 Ind.App. 331 |
| Court | Indiana Appellate Court |
| Parties | UNION TRACTION CO. OF INDIANA v. WYNKOOP. |
OPINION TEXT STARTS HERE
Appeal from Hendricks Circuit Court; Zimri E. Dougan, Judge.
Action by Alva H. Wynkoop against the Union Traction Company of Indiana. Judgment for plaintiff, and defendant appeals. Affirmed.
J. A. Van Osdol, of Anderson, Ralph K. Kane and Gideon W. Blain, both of Indianapolis, George W. Brill, of Danville, and Robert Hollowell, Jr., of Indianapolis, for appellant.
Beckett & Beckett, of Indianapolis, and Thad S. Adams, of Danville, for appellee.
Action by appellee against appellant to recover damages for injuries to himself resulting from the collision between one of appellant's interurban cars and an automobile. The accident occurred in the city of Indianapolis, at the intersection of College avenue and Fall Creek boulevard. College avenue is a street running north and south through said city over which the railroad tracks used by appellants for the operation of its interurban cars are constructed, and Fall Creek boulevard is a public thoroughfare in said city running southwest and northeast intersecting said College avenue at an angle.
The automobile at the time of the accident was being operated in a northeasterly direction over the boulevard. The interurban car of appellant was in-bound and was being operated from north to south on College avenue across the boulevard. It is averred in the complaint, so far as here involved: That as said automobile ran onto the west track of appellant's railroad, appellant ran its electric car against it, negligently crushing and dragging it a long distance. That appellant negligently ran said electric car against said automobile at a dangerous rate of speed of 35 to 40 miles an hour, in violation of an ordinance of the city, in full force and effect at the time, which limited the speed of said car to 25 miles per hour. That appellant as it so approached said boulevard, negligently failed to have the headlight on its car lit and burning, and by reason thereof the driver of said automobile and appellee were unable to see said approaching car at sufficient distance from said crossing to enable the driver and appellee to avoid collision therewith. That by reason of each, every, and all of the acts of negligence alleged appellee was greatly injured, for which he demands judgment for $15,000. A trial by jury resulted in a verdict in favor of appellee for $3,500 on which judgment was rendered.
[1] The error assigned is the action of the court in overruling appellant's motion for a new trial. As there is some evidence to sustain each of these allegations of negligence and the verdict of the jury, we give no further consideration to this question presented by appellant.
[2][3] By instruction No. 1 requested by appellee, the court undertook to define negligence. Appellant objects to so much of this instruction as told the jury that where a valid ordinance prohibits an act or acts, or requires an act or acts, to be done and performed, the failure to obey such an ordinance is negligence. But appellant's objection thereto is without force. It has been repeatedly held in this state that the violation of an ordinance, or a statute, is negligence per se. Prest-O-Lite v. Skeel, 182 Ind. 593, 106 N. E. 365, Ann. Cas. 1917A, 474;Hamilton, etc., Co. v. Larrimer, 183 Ind. 429, 105 N. E. 43;Cleveland, etc., Co. v. Powers, 173 Ind. 105, 88 N. E. 1073, 89 N. E. 485;Hill v. Chicago, etc., Co., 188 Ind. 130, 122 N. E. 321;Mortimer v. Daub, 52 Ind. App. 30, 98 N. E. 845.
[4] Appellant presents the same question in its objection to instruction No. 10 requested by appellee. By this instruction the court informed the jury that if it found that appellant operated its car at a speed beyond 25 miles an hour, which was the limit of the speed ordinance, it was guilty of...
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