76 Ind. App. 191 | Ind. Ct. App. | 1921
Appellee commenced this action against George Russell, John E. Morand, the Frank Bird Transfer Company and the Indianapolis Transfer Company to recover damages for personal injuries, alleged to have been inflicted by reason of their negligence. During the progress of the .trial the cause was dismissed as to said Morand, but was prosecuted to final judgment against the remaining defendants. The complaint is in. five paragraphs, the first of which charges that the de
Appellee seeks to avoid a consideration of this appeal on its merits, by asserting that the evidence is not in the record. This contention, however, is not well
Appellants complain of the action of the court in giving instruction No. 28. While this instruction was not as carefully drawn as it should have been, still it may be fairly construed as informing the jury, that if it found that appellants or either of them operated the automobile over and upon the public street of the city of Indianapolis, on the occasion in question, at a greater rate of speed than a person of ordinary prudence would drive the same under the circumstances, without the driver thereof looking ahead or giving reasonable warning of its approach, and that in so doing there was- a failure to exercise ordinary care in the operation of such automobile, which was the proximate cause of the injuries alleged in appellee’s fifth paragraph of complaint, the appellant so operating said automobile would be guilty of negligence. When so construed the instruction may be readily distinguished from the one held to be erroneous, in the case of Martin v. Lilly (1919), 188 Ind. 139, 121 N. E. 443, cited by appellants. The court did not err in giving said instruction.
Appellants finally contend that the decision of the court that George Russell, the driver of the cab which struck and injured appellee, was a servant of the Frank Bird Transfer Company at the time of the infliction of such injuries, is not sustained by sufficient evidence. The following facts, bearing on such contention, are clearly established by undisputed
For the reasons stated, the judgment is affirmed as to all appellants, except the Frank Bird Transfer Company, and as to it, the judgment is reversed with instructions to sustain its motion for a new trial. The costs to be adjudged, one-half against appellants, other than the Frank Bird Transfer Company, and one-half against appellee..