53 Ind. App. 366 | Ind. Ct. App. | 1913
— Appellee recovered a judgment for damages resulting from personal injuries which he received in a collision with one of appellant’s interurban cars. For some distance east of the city of Brazil, Indiana, appellant maintained its tracks and operated its cars along the centre of a highway known as the National Road. At the time appellee received his injury he was on this highway just east of the city limits of Brazil and was riding in a buggy drawn by a single horse. He was going east and the car which collided with his buggy and caused his injury approached from the rear. The case went to trial upon two paragraphs of complaint. The first paragraph charged that appellant was negligent in the particulars, following: first, that appellant ran and operated its car at a high and dangerous rate of speed; second, that appellant negligently constructed and maintained its tracks in the highway with the rails six inches above the traveled part of the road; third, that appellant’s motorman negligently failed to apply the brakes to the car after he discovered the danger to appellee. The third paragraph proceeds upon the theory that appellee was in a dangerous situation on the tracks of appellant from which he was unable to escape by the exercise of care on his part, and that the motorman of appellant, after discovering his peril, or after he should have
Appellant also points out objections to instructions Nos. 9, 10, 14, 18 and 19. We have examined these instructions and find that, with the exception of instruction No. 10, they are open to some of the objections urged against them. It would unnecessarily extend this opinion to discuss each of these instructions separately. The objections have been pointed out in appellant’s brief, and we have no reason to believe that they will not be avoided in another trial of the case.
The judgment is reversed with directions to sustain defendant’s motion for a new trial, and for other proceedings not inconsistent with this opinion.
Note. — Reported in 101 N. E. 746. See also, under (1) 33 Cyc. 896; (2) 33 Cyc. 236; (4) 33 Cyc. 854; (6) 3 Cyc. 275, 386. As to obligations of street railway company to municipality in respect of care of streets occupied for roadbed, see note to Western P. & S. Co. v. Street Railroad Co. (Ind.), 25 Am. St. 475. As to street car collisions with vebicles or horses, generally, see 25 L. R. A. 508. As to frightening of horse by street car, see 34 L. R. A. 486; 21 L. R. A. (N. S.) 288. On the question whether wantonness or wilfulness, precluding defense of contributory negligence, may be predicated on the omission of a duty before the discovery of a person in peril on a railroad or street railway track, see 21 L. R. A. (N. S.) 427. For a discussion of the duty and liability of a street railwáy as to vehicles moving along its tracks, see 7 Ann. Cas. 1127, 18 Ann. Cas. 510.