22 Ind. App. 151 | Ind. Ct. App. | 1899
— Appellants appeal from a judgment in appellee’s favor awarding damages for the death of appellee’s decedent. For opinion on the former appeal of this case, see 18 Ind. App. 522.
The only errors assigned which are- discussed by appellants’ counsel question the overruling of the motion for judgment in appellants’ favor on the answers to the interrogatories, notwithstanding the general verdict, and overruling appellants’ motion for a new trial.
The jury returned a general verdict in appellee’s favor, and with it answered the following interrogatories: “(1) Q. Was the Citizens Street Bailroad Company operating a track where the plaintiff’s decedent was hurt at the time of his injury, under a contract with the board of commissioners of Marion county, Indiana, granted at the September term, 1865? A. No. (2) Q. Did the said contract with said county commissioners require the Citizens Street Bailroad Company to keep any portion of West Washington street in repair? A. Yes. (3) Q. Was the place where plaintiff’s decedent was injured, at the time defendant laid its track'at that point, a part of the city of Indianapolis? A. No. ■ (4) Q. Has said territory since been annexed by the city of Indianapolis? A. Yes. (5)‘Q. Did the Citizens Street Bail-road Company when it originally laid the said track, lay the same so that the tops of the rails were on a level with the established grade of said Washington street? A. No. (6) Q. Had there ever been, up to the time of the accident, any change in the established grade of said Washington street? A. No. (7) Q. Had there ever been any change up to the time of this accident, in the elevation of the rails of said track? A. No. (8) Q. Did the plaintiff’s decedent’s vehicle upset at the time when the right hind wheel thereof was upon the north rail of the street car track, and the remaining
Taking the answers to the interrogatories and the evidence in support of them, and we cannot escape the conclusion that the negligence of both the city and the railway company is shown. The answers to the interrogatories show a condition of affairs establishing negligence on the part of both the city and the railway company, beyond question. The street was not only unsafe for public travel, but both it and the railway tracks had been permitted to remain in that unsafe condition for eighteen months. And the answers to the interrogatories are not inconsistent with the general verdict finding appellee’s decedent free from contributory negligence, unless the seventeenth interrogatory and answer make them so.
The jury, by their general verdict, found, in effect, that the decedent at the time of his injury, was exercising such care as a reasonably prudent person would exercise under like circumstances. And the answer of the jury that the evidence does not show what care he was using at the time of the ac
It appears from the evidence that the accident resulting in decedent’s death happened between 6 and 7 o’clock in the evening in the month of January; that it was dark; that'the horse decedent was driving -was blind; that decedent was pursuing his usual avocation; that he was going in a direct line to his place of destination, to deliver a trunk. It was too dark to see the surface of the street and the street-car track, but the outline of .the horse and wagon could be seen by a person standing on the lot abutting the street, and opposite the place where the accident occurred. A witness who saw the decedent driving across the street, and saw the wagon upset, testified that he noticed no increase of speed of the horse, nor anything of that sort, just before the accident occurred. It appears the decedent was at a place where he had a right to be, and was doing what he had a right to do. The jury
Prom a careful review of all the evidence, we think the record discloses some evidence to sustain the finding that both appellants were negligent in permitting the street and railroad track to be and remain in the condition they were in at the time of the injury, and that the decedent was exercising such care as an ordinarily prudent person would use under the circumstances.
The court properly instructed the jury that the decedent had the right to presume, and to act on the presumption, unless he had knowledge to the contrary, that the street was in a reasonably safe condition for travel by him, if he used due care; and the fact that he knew or had reason to believe the street unsafe would not preclude him from using the street; but in such case he must use care proportioned to the danger of which he knew or had reason to apprehend; and if he did not know or have reason to apprehend danger, or knew it and used care proportioned to the known or reasonably apprehended danger, and, notwithstanding such care, was injured, then, so far as contributory negligence was concerned, there might be a recovery.
In speaking of what constitutes constructive notice, the court told the jury: “A very short time may be sufficient, considering the location of the defect in a street, the character of it, the extent to which the street is used, to what extent the defect' or obstruction is permanent and prominent, and such other things as throw light on the question. What the facts are, and the reasonable inferences therefrom, arc for you to determine, under all the evidence and circumstances considered in accord with the court’s instructions.”
In its thirteenth instruction the court said to the jury: “If you find that at the time said track was placed in said highway the territory at the point in controversy was not in .the city of Indianapolis, and that said track was so placed by consent of and contract with the board of county commissioners, but that thereafter said territory was annexed to and became part of said city, and the city undertook, by ordinance, to name terms and conditions for the maintenance of said track for the purpose of preserving the public highway at that point in a reasonably safe condition for public use and travel, and said street railroad company accepted the terms of said ordinance then the ordinance terms would be binding on said company, and any violation of The terms of said ordinance rendering said highway dangerous to . travelers, would be negligence; and if said condition proximately caused the death of Jehu Ballard, and he was at the time using due care, the defendant company would be liable therefor.” It is objected to this instruction, that it assumed that the ordinance of the city of Indianapolis was passed in an attempt to establish a method of maintaining this street, in common with others, and was so accepted by the company. But we fail to see wherein this instruction is objectionable. Even if the street railway was.built under a contract with the county commissioners, when the highway became a part of the city _ it was the duty of the company to maintain its track so as to preserve the public highway in a reasonably safe condition for public use and travel; and. it was its duty to do this whether there was any ordinance requiring it to be done or
It is argued that the evidence does not show that the death of appellee’s decedent resulted from the injury received. The jury answered that it did, and it cannot be denied that there was some evidence to sustain this, finding. Counsel have discussed this evidence, but it is clear we cannot disturb the jury’s finding upon this point without weighing the evidence, and this we cannot do. While a court might believe that the great weight of intelligent testimony in a given case was against a jury’s finding, yet, if the finding is supported by some evidence, the verdict must stand.
The court fully instructed the jury on the question of proximate cause, and the instructions requested by appellants upon that branch of the case were covered by the instructions given by the court. The court’s instructions cover the whole case, and clearly and correctly state the law as applicable to the evidence. There is no error in the record, and the. judgment is affirmed.