35 Ind. App. 700 | Ind. Ct. App. | 1905
Suit to recover damages for a personal injury; complaint in one paragraph; answer of general denial; trial by jury; verdict for $1,000, with answers to interrogatories; motion for judgment on answers toi interrogatories notwithstanding the general verdict overruled; judgment on the verdict.
The complaint enumerates various acts of negligence,, namely, that defendant .carelessly and negligently failed to ring its gong, or to look ahead to'see and observe the track ahead of said car, and to warn any traveler upon said public highway that said car was approaching; that the defendant carelessly and negligently failed and neglected to maintain a headlight upon said oar, so that persons upon said Shelby street could discover the approach of said car; that in consequence of the negligence and carelessness of the- defendant as aforesaid the defendant’s servants carelessly and negligently “ran said car without giving plaintiff any warning,”' etc. If it took all the acts, averred to make a charge of actionable negligence, then the point would be well taken. But in a civil suit it is only necessary to prove so many of the facts alleged as constitute a cause of action, and the liability of the defendant upon proof of negligence in one respect indicated by the instruction in nowise depends upon the proof of the others, or either of them. While- partícula!' acts of negligence are set out, they are not charged as jointly causing the plaintiff’s injury. The instruction was correct.
The court instructed the 'jury that if it found such ordinance to have been in force, and that at the time of the accident appellee was traveling upon the left side of the street in violation thereof, then he would be guilty of such contributory negligence as would bar his recovery for damages received while thus violating such ordinance and received in consequence of such violation, unless it should also find that the right side of the street was in such condition as to render it impracticable or unsafe to travel'thereon, in which case he would not be chargeable with negligence solely because he was traveling on the left side of the street
The ordinance required drivers of vehicles “to keep as nearly as practicable to the right side of such street.” If appellee did this, there was no violation either of the letter or spirit of the ordinance. The ordinance itself contemplated conditions under which its observance would not be practicable. Whether he did it or not was, under the evidence, a question of fact.
Shelby street was not at that place a paved street. Appellant was extending its double track over the same, and had excavated large portions of the street. The east side of the street was occupied by piles of dirt, and otherwise obstructed. It had been recently filled in with fresh dirt, which at the time was soft and wet. Appellee crossed to the west side of the'street on account of the condition of the driveway on the right side. The night was dark and foggy. Shelby street was straight. There was nothing to cut off appellee’s view, except the darknesk and fog, for 500 feet at least. The car was a summer car; lighted by electricity, and made a noise which could be heard'for some distance. There was a switch-engine operating in the vicinity, and an electric street lamp at the intersection of Raymond street. Said lamp hung over the east track, and was distant about one block from the point of collision. The distance between the west rail and the curb on the west side of the street along which appellee was traveling was variously estimated at from seven to fifteen feet. There are references in the evidence to the gutter next to the sidewalk, but its extent does not plainly appear. The gong was sounded once when the car was one and three-fourths blocks away from the place of the accident. There is no evidence that the headlight was burning at the front of the car. Appellee and his companion were both of mature years and in possession of their faculties. Harris was familiar with the street, but appellee was not. Appellee gave his attention to the horse and the road, and told Harris to watch for a car, which he says he did. Harris did not see the approaching car until it was within twenty feet of him. His explanation of his failure to see the car was that the electric light at Raymond street dazzled
We find no error for which the judgment can be reversed.
Judgment affirmed.