187 Ind. 451 | Ind. | 1917
Lead Opinion
— Appellee brought this action in the Hamilton Circuit Court against appellant to recover damages for personal injuries sustained in a collision between one of appellant’s interurban cars and an automobile in which she was riding. The collision occurred on September 10, 1913, at 5:30 in the afternoon, at a highway grade crossing. The venue was changed to the Clinton Circuit Court, where- a trial resulted in a verdict and judgment in favor of appellee for $15,000.
From this judgment appellant appealed to this court, and the only error here relied on is the action of the trial court in overruling its motion for a new trial, which contains seventy-one specifications. The first two reasons are: That the evidence is insufficient to sustain the verdict, and that the verdict is contrary to law.
Appellant insists, first, that the uncontradicted evidence shows affirmatively that appellee was guilty of contributory negligence proximately contributing to her injury.
The acts of negligence charged in the complaint are in substance: (1) That appellant negligently ran its car at a high and dangerous rate of speed towards and upon the crossing where the accident occurred, and negligently struck the automobile in which appellee was riding, and thereby negligently injured her. (.2) That appellant negligently ran its car at a high and dangerous rate of speed, to wit, sixty miles an hour, within 500 to 1,000 feet behind another of its cars, upon the same track and in the same direction, without giving any notice to appellee of so running its car, and negligently ran said second car against the automobile in which appellee was riding, thereby negligently injuring her. (31 That appellant negligently ran its second car
It appears from the evidence that at the time of the accident appellee and her husband were riding in an automobile as the guests of their neighbors, Mr. and Mrs. Waltz, and without any authority to direct or control the machine or driver thereof. The machine was working splendidly, and was under full control of Mr. Waltz, who was carefully driving it. The top of the automobile was up, but there were no side curtains. The automobile party was returning to.their home at Nobles-ville from Indianapolis over a public highway running north and south which crossed appellant’s track running southwest and northeast 258 feet north of another public highway running east and west, known as the Carmel road. The east and west road crossed appellant’s track at grade 625 feet southwest of the crossing where the accident happened, and is known as Gray’s stop. The physical features of the vicinity north of the east and west road and east of the north and south road are substantially as follows: The ground rises gradually to the north and east. From the center of the north and south highway on the south line of the right of way northeast, parallel with the track, 170 feet, the ground is five and one-half feet higher than the highway. From this high point south, the ground rises to a point near a church, which is about 150 feet east of the north and south road. On this ground is located a cemetery with a large number of tombstones scattered over it. From the center of the railroad track along the center of the highway south to a point opposite the northwest corner of certain hitching sheds is 27.4 feet. These sheds are eleven feet high, extending north and south along the
Further, the evidence tends to show that when the party reached the Carmel road-Waltz put his machine in low gear, and while continuing north toward the crossing they heard a car whistle, and in four or five seconds another*whistle, and as the machine reached the right of way the car passed. Haworth, husband of appellee, testified that when he heard the whistle he could not see anything on account of the hill and, when they reached the point where he could see, he looked east but did not see a car, then to the west at the car which had just passed until it had obstructed his view to about half of the little station building to the southwest. He then turned his heád to the east, and the car that struck them was so close that he could not see the top of it from under the top of the automobile; that after the first car passed he heard no whistle of any car to the east, and the automobile was running slowly, just barely moving, not over two miles per hour, and they were then about twenty-five to twenty-seven feet from the track. After the first car passed, Waltz speeded the automobile up to about
The evidence tends to prove that both cars were running at the rate of fifty to sixty miles per hour, and that the first car had about reached Gray’s stop when the second car collided with the automobile. The jury might readily conclude from that fact that the cars were running approximately 625 feet apart. If that be true, when the first car was on the crossing the second car was approaching the low part of the road east, and from the highway beyond the high point of the land, and was near the concrete arch and west of the whistling
Appellant next complains of the action of the court in giving to the jury over its objection certain instructions, as set forth in the motion for a new trial by twenty-two specifications.
The correction of the record by certiorari answered appellant’s objection as to three of these instructions.
We see no good purpose in extending this opinion to separately consider all of the instructions of which appellant complains, as we have carefully considered each one separately, and all of the instructions as a whole, with the final conclusion that the jury could not have been misled thereby to the prejudice of appellant.
Appellant tendered a number of other instructions which the court refused to give, all of which we have carefully examined and compared with the instructions given, and have concluded that appellant was not harmed by the action of the court in refusing to give these instructions.
Finding no reversible error, the judgment is affirmed.
Rehearing
On Petition for Rehearing.
To such a situation the rule applies which is an
Note. — Reported in 115 N. E. 753, 119 N. E. 369.