Wolf v. Vehling
| Citation | 137 N.E. 713,79 Ind.App. 221 |
| Decision Date | 24 January 1923 |
| Docket Number | 11,418 |
| Parties | WOLF v. VEHLING |
| Court | Indiana Appellate Court |
From Marion Superior Court (A11,649); W. W. Thornton, Judge.
Action by William H. Vehling against John B. Wolf. From a judgment for plaintiff, the defendant appeals.
Affirmed.
White Wright & McKay, for appellant.
H. N Spaan and Ralph M. Spaan, for appellee.
Action by appellee to recover for personal injuries sustained in a collision between an automobile driven by appellant and a wagon in which appellee was riding as an invited guest. The collision took place at the crossing of Seventeenth and Alabama streets in the city of Indianapolis. Appellant was going south on Alabama and appellee east on Seventeenth at the time of the collision. The only error assigned is that the court erred in overruling appellant's motion for a new trial, for the reasons that the verdict of the jury: (1) is not sustained by sufficient evidence; and (2) is contrary to law.
In support of the contention that the verdict is not sustained by sufficient evidence, appellant states five abstract propositions of law, all of which are probably correct, but there is no attempt to apply them to the evidence or to show why the verdict is not sustained by the evidence. No reference is made to the evidence nor has any attempt been made to show a failure to prove any element necessary to a recovery.
But, waiving the question as to whether any question is presented for our consideration, we have carefully considered the evidence and find it ample to sustain the verdict.
In support of the contention that the verdict is contrary to law, appellant insists: (1) that instruction No. 12 given to the jury is contrary to law, inasmuch as it does away with the authority given cities by § 8655, cl. 31, Burns 1914 (Acts 1905 p. 219, § 53), to declare preferential traffic and that it eliminates and takes from the jury the question of contributory negligence on the part of appellee; and (2) that the court erred in refusing to give instruction No. 21 which would have told the jury that, "Where one rides as a guest in a wagon on a dark night without lights over a highway with which the driver is no more familiar than the guest, with full knowledge of the facts, he is obliged to exercise the same degree of care to avoid accidents as is the driver."
Assuming without deciding that the questions relating to the action of the court in giving and in refusing to give said instructions are properly presented, since appellee has not raised the question, we proceed to a consideration of the questions thus presented.
The evidence shows that at the time when appellee was injured there was an ordinance in effect in the city of Indianapolis which provides that: "Traffic on north and south streets shall have the right of way over traffic on all east and west streets, except Washington street." The court in instruction No. 12, after calling attention to this ordinance, said: ...
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