39 Ind. App. 75 | Ind. Ct. App. | 1906
The action was for personal injuries received by appellee by being struck by one of appellant’s cars at the corner of Maryland and Illinois streets in the city of Indianapolis, April 13, 1902. Upon change of venue, the case was tried in the Eush Circuit Court. The street railway company, at said date and for several years prior thereto, maintained double tracks upon Illinois street, with switches leading in either direction into Maryland street. Appellee was riding in a carriage with his wife and little boy, driving north upon the east side of Illinois street, and as he reached the intersection of Maryland street one of appellant’s large, double-truck cars, running at a rate of fifteen miles per hour, was passing over this Maryland street switch, .and as the front trucks passed over the switch it was thrown open so that the rear trucks of the car turned into the switch and whirled quickly to the east. The rear end was carried around so that the car was swept side-ways down Illinois street, striking and crushing the carriage in which appellee was riding, and inflicting the injuries for which he sues.
The complaint was in two paragraphs, the first alleging negligence by the street car company in allowing the switch to become out of repair, worn, loose, and dangerous, and in running the car at a high and dangerous rate of speed over the same. The second charges negligence in the high and dangerous rate of speed at which' the car passed over the switch.
The error assigned is the action of the court in overruling appellant’s motion for judgment in its favor upon the interrogatories returned by the jury, notwithstanding the general verdict.
The material facts found, show that said switch was manufactured by the Loraine Steel Company, a reputable manufacturer of frogs and switches for street railway purposes, from measurements made at the place where the switch was to be used in the operation of the road. It was covered by a patent, owned or controlled by the Loraine Steel Company, and was, when purchased, and has been at all times since, of a kind and character in general use upon street railways in the United States. It was in position at the intersection of Illinois and Maryland streets in the city of Indianapolis in 1899. Has been in almost constant use, for cars of all patterns and running at all rates of speed, from the time it was placed in position until the time of said accident. Approximately one million cars passed over said switch, in said position, prior to the accident. It had never been repaired, altered, or in any manner changed from the time it was placed in position until the accident. Another car had been derailed at said switch previous to the accident. When the tongue was placed for the car to continue on a straight track, the point of the tongue laid in.behind a shoulder of steel so as to be protected from coming in contact with any part of the wheel,
Judgment affirmed.