62 Ind. App. 191 | Ind. Ct. App. | 1916
Appellee, by her next friend Charles Pell, brought this action against appellant to recover damages for personal injuries .alleged to have been caused by a defect in one of the streets of appellant city. The cause was taken on a change of venue to the Boone Circuit Court, where a trial resulted in a verdict and judgment in favor of appellee for $1,500.
It is assigned that the court erred in overruling appellant’s motion for a new trial. The sole alleged error is the giving of instruction No. 1 by the court on its own motion, in which the question of contributory negligence on the part of appellee was taken from the jury.
It is insisted on behalf of appellant, and not controverted by appellee, that if there was evidence introduced in the case from which the jury might reasonably have inferred contributory negligence on the part of appellee, the instruction was erroneous. If, on the other hand, there was no such evidence, no error was committed.
It is shown in evidence that appellee was fifteen years of age, and was familiar with the situation and surroundings of the place where she met with the injury; that the automobile was traveling at a speed of about eight miles per hour at the time it went into the hole in the street. It may be reasonably inferred that its speed was somewhat retarded by contact with the railroad tracks and the curb of the sidewalk. It was also shown that the young lady that accompanied appellee wholly escaped injury. There is evidence tending to show that appellee’s injury was inflicted while she was some distance from the sidewalk in Meridian street, and some distance from where she first observed the approach of the machine. There is some evidence tending to show that she ran around and in front of'themachine, and it is argued that if she had taken one step backward, or had gone in any other direction from the one in which she did go, she would have escaped injury.
Note. — Reported in 111 N. E. 22. Rights and duties of pedestrians and of persons driving .automobiles in highways, 4 Ann. Cas. 400,- 13 Ann. Cas. 463 ; 21 Ann. Cas. 652. Liability of municipal corporations for defective streets, 103 Am. St. 257. See under (2) 28 Cyc 49; (3) 29 Cyc 521; (4) 4 C. J. 520, 532; 3 Cyc 155, 164.