Union Traction Co. of Indiana v. Gaunt
| Decision Date | 16 May 1922 |
| Docket Number | No. 24155.,24155. |
| Citation | 193 Ind. 109,135 N.E. 486 |
| Parties | UNION TRACTION CO. OF INDIANA v. GAUNT. |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Adams County; David E. Smith, Judge.
Action by Arthur L. Gaunt against the Union Traction Company of Indiana. From a judgment for plaintiff, an appeal was taken to the Appellate Court, and transferred to the Supreme Court, under Burns' Ann. St. 1914, § 1394, subd. 2. Affirmed.
Superseding 130 N. E. 136.
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.
This is an action by appellee against appellant to recover damages alleged to have been sustained on account of the death of his daughter, which resulted from an injury occasioned by a collision on a highway crossing of appellant's car with a township school wagon, in which the deceased was a passenger, and by which she was being conveyed to school.
Appellant operated an interurban railroad, which crossed the public highway where the collision and injuries complained of took place at an acute angle; the railroad running northeast and southwest, and the highway east and west. At the junction of the railroad and highway, and east of the railroad and south of the highway, was situated a country store, which was about 32 feet at the north end and about 28 feet at the south end from the railroad track. Appellee's daughter, who received the injuries, was 12 years of age, a pupil in school, and on the morning and at the time of the accident was on her way as a passenger in the school wagon, from the place where she was living, which was the home of her aunt, to the school. The school wagon was owned and driven by the person selected and hired by the school trustee, as provided by law. Previous to the accident the school wagon driver had collected 22 pupils, and was proceeding south along the highway, and had reached the country store and railroad, and had stopped in front of the store in such a position that his team was south of the south line of the country store, and the wagon north of such line. The stop was made for the convenience of one of the pupils, a little girl who had an errand to perform at the store. The errand was completed in about three minutes. But about the time she entered the school wagon, and before the driver had started it, a work car, belonging to appellant, came around a curve from the south, which was about 800 feet distant from the crossing. When the car came around the curve onto the straight track, and was a distance of 800 feet from the crossing, the motorman could and did see the team, which was standing about 10 feet east of the track, but he could not and did not see the wagon. He knew that the school wagons passed this crossing about this time. At the time he first noticed the team the speed of the car he was operating was between 35 and 50 miles per hour. The driver of the school wagon started his team across the track as soon as the little girl had regained her place in the wagon, and before starting he listened, but did not hear the approach of the car, nor any signals given of its approach by whistle or bell, and looked down the track in the direction from which the car was coming, and did not see it, and kept looking until he reached the track. When the team had cleared the track, and the front wheels of the school wagon were in the middle of the track, between the rails, the driver of the wagon noted the approach of the car about 100 feet distant on his left, and also heard some one call out that a car was coming. He prodded one of his horses with a stick, which caused it to lunge forward to escape being hit by the on-coming car. The motorman testified that, when about 400 feet distant from the crossing, and after he had seen the team start across the track, he threw off the current and applied the air brakes to check the speed of the car, and when about 150 feet distant from the crossing he reversed the controller and applied the power in the last effort to stop the car, and avoid a collision. The motorman in charge of appellant's work car was not a regular motorman, and was not hired for that purpose, but was running the car that morning. He was employed by appellant as a lineman. This trip was his second trip over this line from the east. Evidence was given by three experienced motormen to the effect that “the power” on the work car “was not shut off and the brakes were not applied”; that such lineman as motorman in charge of the car “did not sustain his position, and did nothing to stop the car”; and that, if such car were running at a speed of 40 miles an hour, it could, under the circumstances, have been stopped within a distance of 300 feet. The work car hit the rear end of the school wagon, demolishing it and throwing the children and driver out, and stopped between 200 and 300 feet down the track. The daughter of appellee, who was injured, was at the time of the accident riding in the rear end of the school wagon, and after the accident was picked up some little distance away unconscious and badly injured, from which injuries she died the following day, without regaining consciousness. The evidence disclosed that the appliances on the car to stop it were in good mechanical condition; that the rails were dry; that the air was so clear that one could see clearly for a distance of 800 feet.
The complaint in two paragraphs was founded upon the alleged negligence of appellant in running and operating its car at a high and dangerous rate of speed, and upon negligence of appellant in failing to give warning of the approach of said car to the the crossing where the collision occurred by sounding a whistle or ringing a bell, as required by law, and upon the failure of appellant's motorman to stop said car, or to check the speed thereof, and thus avoid the collision, knowing that, unless the car was stopped, or the speed of same slackened, the impending accident would occur.
The issue was formed by appellant's answer in general denial to each paragraph of the complaint. The trial resulted in a general verdict by the jury for the appellee, together with answers to interrogatories propounded to the jury. Appellant's motions for judgment in its favor on the answers of the jury to the interrogatories, notwithstanding the general verdict, for a new trial, and in arrest of judgment, were each in turn overruled by the court, and thereupon the court rendered judgment upon the general verdict in favor of appellee, from which appellant appealed.
Errors relied upon for reversal of the judgment were: (a) for overruling the motion for verdict on the answers of the jury to the interrogatories; and (b) overruling the motion for a new trial. The causes for a new trial relied upon are: (a) The verdict is not sustained by sufficient evidence; (b) the giving of three instructions to the jury.
Admitting that the negligence of appellant is established by the general verdict, and that it was negligence on the part of the driver of the school wagon to have so driven upon the railroad track, and that such act was negligence on his part and contributed to the injury; the sole question is:
“Was such negligence of the driver of the school wagon attributable or imputed to the father of the deceased?”
Appellant depends upon the rule of law, as set forth in its brief:
“The general rule that when a parent entrusts a child to the care or custody of another, and such child is injured by reason of the contributory or concurrent negligence of such person, the negligence of such person so in charge of such child is imputed to the parent and the parent cannot recover.”
Appellant's statement is too general; it cannot be applied to this case to determine it.
The evidence and law cited and relied upon in this case by appellant admit that the conveyance and the driver, and the route and schedule of the conveyance, were provided for by law and governmental agencies. The status of the relationship between the plaintiff and such driver will determine the question of attributable...
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