63 Ind. App. 663 | Ind. Ct. App. | 1917
This is a suit for damages for personal injuries and is the second appeal to this court. Croly v. Indianapolis Traction, etc., Co., 54 Ind. App. 566, 96 N. E. 973, 98 N. E. 1091. The complaint in one paragraph is the same as it was at the first trial and sufficiently appears in the former opinion. The answer was a general denial. At the close of appellant’s testimony, the defendant, appellee, moved the court to instruct the jury to return a verdict for the defendant, which motion was overruled. Thereupon, at the request of appellee, the court permitted it to recall one of appellant’s witnesses, the motorman who operated the car which struck appellant, and to further examine him, all of which was done oyer the objection and exception of appellant. At the close of such examination appellee renewed its motion for a peremptory -instruction in its favor, and the same was sustained by the court, who in ruling on the motion said: “It strikes me that under the first decision of this case I will have to sustain this motion.
Thereupon the court ordered the jurors te be brought in and instructed them to return a verdict for the defendant, and in so doing stated in substance that there was no evidence tending to prove that the motorman operating the ear saw appellant, and saw that she was in a dangerous position or about to come into a dangerous position, and was unconscious of her danger, in time to have stopped the car, or to have given such warning, as would have prevented the injury complained of.
Appellant has assigned as error that: (1) The court eired in sustaining appellee’s motion to recall the witness Hough, after the court had overruled appellee’s motion for a peremptory instruction; (2) overruling appellant’s motion to set aside the verdict; (3) overruling her motion for a new trial. The first assigned error is also one of the grounds for a new trial. The motion for a new trial alleges: (1) that the verdict of the jury is contrary to law, and (2) it is not sustained-by sufficient evidence; (3) error in instructing the jury as above shown; and (4) error in the admission of certain evidence.
As we interpret the briefs, appellant contends that appellee’s liability arises under the last clear chance doctrine, and the ruling of the trial court and the instruction of the jury indicate that such was the theory upon which the case was presented and decided below.
After reviewing the evidence, this court in the former opinion, by Lairy, J., said: “In our judgment, the undisputed evidence shows -that the plaintiff failed to use due care in view of her age and experience. * * '* We have held in this ease that the undisputed evidence shows that the
Judge Lairy then takes up the last clear chance doctrine, and after an extended and able discussion thereof, applies it to the case at bar, and in so 'doing, among other things, says:
“If there is some evidence in the record tending to prove that the motorman actually saw the plaintiff approaching the track and that her conduct and appearance at that time was such as to indicate that she did not observe the approach of the ear and was oblivious of her danger, then the verdict can be sustained, even though her want of care in failing to see the car, continued up to the time of her injury, provided that there is also evidence tending to prove that after the motorman knew of her perilous situation, he had time to have avoided the injury by the exercise of due care. The evidence upon this question is conflicting. * * * In deciding whether the motorman saw plaintiff and observed the danger to which her conduct was about to expose her, in time to have prevented the injury, the jury had a right to consider the speed at which the car was moving and also the speed at which plaintiff was walking. as well as the distance that each was required to move to reach the point of collision. Prom a consideration of the evidence, we cannot say that the jury could not have properly found that the motorman knew of the danger to which plaintiff was about to expose herself in time to have prevented the injury. The evidence is sufficient to sustain the verdict.”
The opinion then takes up the instructions to the jury and
We have carefully reviewed the former opinion and the statement of the evidence which it contains (Croly v. Indianapolis Traction, etc., Co., supra, pp. 573-586) and also the evidence in the record on this appeal, and find it to be substantially the same as it was upon the former trial, with some exceptions which seem to strengthen rather than weaken the evidence which the former opinion held sufficient to sustain a verdict in appellant’s favor on the question of the last clear chance, as shown by the following language: “We cannot say that the jury could not have properly found that the motorman knew of the danger to which plaintiff was about to expose herself in time to have prevented the injury. The evidence is sufficient to sustain the verdict.” As the question comes to us, we are only required to consider the evidence, if any, tending to sustain appellant’s contention that appellee is liable under the last clear chance doctrine. The evidence of Mrs. Nellie Swan, a sister of appellant, is to the effect that she was on the opposite side of the street at a window in her house, and saw the car which struck appellant, when it was twenty or thirty feet or more away from the place where it struck her; that it was running twenty or thirty miles an hour and did not stop until after it ran over appellant, and that she heard no gong or bell or anything of the kind sounded; that when she first saw the car appellant was just leaving the sidewalk and starting to cross the street, moving rapidly; that she hallooed to her and just then a freight train came along on the elevated tracks and she did not hear her and was struck by the street car; that appellant looked up and down the street after she left the sidewalk to cross the street.
Her mother testified, in substance, that the car which struck appellant was going rapidly and did not stop after it ran over her until it ran down to the elevated tracks, about a square around on the curve, and then backed up near the place of the accident; that a Brightwood ear came off of Lewis street and stopped opposite appellant on the street.
Appellant testified that she was on the south side of the street and waited at the curb for a car to pass going toward Brightwood; that she did not leave the curb until it passed; that she looked both ways after she left the curb and saw no other car and did not see the car that struck her; that she was walking across the street, heard no one halloo to her, and would have stopped if the motorman had sounded the gong.or rung the bell.
The judgment is reversed, with instructions to sustain appellant’s motion for a new trial and for further proceedings not inconsistent with this opinion.
Note.—Reported in 115 N. E. 105. Applicability of doctrine of last clear chance where danger is not actually discovered, 55 L. R. A. 418; 30 L. R. A. (N. S.) 957. Last clear chance doctrine, applicability, 29 Cyc 531; 30 Cyc 1517, 1505, 1567. Subsequent appeals, “law of the case,” conclusiveness of prior decisions, 34 L. R. A. 321; 3 Cyc 493 ; 4 C. J. 1217. See under (1) 3 Cyc 337; (2) 38 Cyc 1366; (5) 36 Cyc 1031.