186 Ind. 149 | Ind. | 1916
Lead Opinion
This is an appeal from a judgment in an action for damages occasioned by the negligence of appellant city.
The first question presented for consideration arose upon the action of the court in overruling the demurrer to the complaint. It appears from the complaint that appellant city maintained a bridge within its limits extending across the city harbor and connecting the north end of Franklin street with the public park which lay along the shore of Lake Michigan. This bridge, which is of the jack-knife type, was so constructed that it could be raised by electric machinery from a horizontal to a vertical position, the purpose of raising it being to allow boats and other watercraft to pass. The bridge was operated by an agent of the city named Heise. On the date of the injury to appellee, it is alleged that he entered upon the bridge for the purpose of crossing, and that when he was about one-third across the agent of the city set the machinery in motion, and started to raise the bridge; that appellee became excited and scared on account of the danger to which he was exposed, and, in an attempt to escape therefrom, ran across to the north end which was raised five or six
Under the assignment of error in overruling the motion for a new trial, appellant claims that the evidence
It is also urged that the court committed error for which the judgment should be reversed in admitting evidence-of the use made of the public park by the city. Without dispute, the evidence shows that appellee was going fishing at the time he
was injured, and that he was not on his way to visit the park for pleasure and amusement. ■ Under this state of the evidence appellant asserts that the rights of appellee could not be enlarged or affected by the fact that the city at the time had granted concessions to various persons to conduct and operate places of amusement in the park and that it was deriving a revenue on that account. Upon this point appellant is clearly correct. The evidence under consideration was not material to plaintiff’s recovery, but the only objection made to this evidence in the trial was that it was immaterial. An objection made to evidence on the
This instruction is subject to criticism. It would have been more accurate if the word “reasonably” had been inserted before the word “necessary” so as to make that part of the instruction state that the bridge tender must use such care as was reasonably necessary under the circumstances to apprise plaintiff that he was about to raise the bridge, having in mind such defect in plaintiff’s hearing. However, we think that the jury must have understood from the instruction, taken as a whole, that ordinary care required the bridge tender to take into account the defective condition of appellee’s hearing in determining what care was necessary and to use such care as ordinary prudence would dictate. Jurors
An examination of the authorities cited by appellee to sustain the instruction will show that all sustain the law as announced by this opinion. In every case cited this court was asked to hold as a matter of law that the defendant in the court below was guilty of contributory negligence. In some of the cases the question decided was the sufficiency of the evidence to sustain the verdict, it being contended that contributory negligence was shown by the evidence as a matter of law. Louisville, etc., R. Co. v. Kelly (1892), 6 Ind. App. 545, 33 N. E. 1103; Pennsylvania Co. v. McCaffrey (1894), 139 Ind. 430, 38 N. E. 67, 29 L. R. A. 104. In the cases of Indiana R. Co. v. Maurer (1902), 160 Ind. 25, 66 N. E. 156, and Lake Erie, etc., R. Co. v. McHenry (1894), 10 Ind. App. 525, 37 N. E. 186, it was claimed that the answers to interrogatories showed contributory negligence as a matter of law. The case upon which appellee most strongly relies is that of Clarke v. Pennsylvania Co. (1892), 132 Ind. 199, 31 N. E. 808, 17 L. R. A. 811. An examination of the record ill that case will disclose that the only question before the court was the sufficiency of the complaint to withstand a demurrer for want of facts, it being the contention of appellee that the facts stated in the complaint showed as a matter of law that appellant was guilty of contributory negligence. The language used in the opinion is correct when considered in the light of the question under consideration, and the same thing may be said of the language of court opinions generally deáling with this question. The question as to whether a plaintiff acting under the influence of fear occasioned by the negligence of a defendant is or is not guilty of contributory negligence is uniformly held to be one of fact to be determined by'the jury in light of the circumstances,
Instruction No. 4, requested by appellee, states the law correctly, more especially when taken in connection with instruction No. 2, which was given.' The jury could not have been misled.
The rest of the instructions asked by appellant and refused by the court have been disposed of by what has been said in a former part of this opinion.
Appellant also asserts that the damages are excessive.
Rehearing
On Petition for Rehearing.
Appellant files a petition for rehearing and questions that part of the original opinion which deals with instructions Nos. 9 and 11 given at the request of appellee. It seems to be appellant’s impression that the court approves of the instructions referred to and that harm would result if they were used upon a second trial of the cause. On the contrary, the court disapproves of these instructions. The opinion goes no further than to state that the errors contained in these instructions would not alone be deemed sufficient to warrant a reversal of the judgment. The objectionable features in instructions Nos. 9 and 11 having been pointed out, it was assumed that they would not be given in the same form upon another trial.
Petition for rehearing overruled.
Note. — Reported in 114 N. E. 636. Liability of a municipality in respect to the maintenance and operation of bridges, 15 Ann. Cas. 833. Liability of municipality for negligence of bridge tender, 19 L. R. A. (N. S.) 1178; 45 L. R. A. (N. S.) 98. Duty of one approaching draw-bridge, 14 L. R. A. (N. S.) 452. Last clear chance: applicability of doctrine to case of imputed negligence 26 L. R. A. (N. S.) 309; concurrent negligence of plaintiff as defeating recovery under doctrine, Ann. Cas. 1912 B 888. Degree of care required of one in sudden emergency, 37 L. R. A. (N. S.) 43. See under (1) 28 Cyc 1450; (2) 29 Cyc 576; (3) 28 Cyc 1274, 1466; (8) 9 C. J. 493; (13) 29 Cyc 655.