185 Ind. 526 | Ind. | 1916
— Action by appellant for the death of Mary Eliza Waters, wife of the administrator. A
The first paragraph of complaint alleges that decedent was run over and killed, on Massachusetts avenue, in Indianapofis, by appellee’s street car, and that the cause of the accident was certain alleged negligence of appellee’s motorman.
The second paragraph alleges that there was in effect an ordinance of Indianapofis that required appellee to pave the space between its tracks and keep the same in repair; that it negligently violated the ordinance by failure to keep the space in repair' and negligently permitted holes to wear in the surface of the pavement and render the same uneven and dangerous. It is also alleged that there was in effect an ordinance of the city adopted in 1902, granting appellee the right to use its streets for the operation of its cars, which was accepted by appellee, and which declares that appellee’s cars
Appellee’s requested instruction No. 6, was given, and is in this language: “A street railway company is not obliged to furnish such a fender as will make it impossible for a person to go under the wheels. It has a right in selecting a fender to use its judgment and experience as a guide and consider all the uses of a fender and the usage a fender has to stand, and if in good faith it adopts an appliance that is reason
Complaint is made in reference to other instructions given and refused, but it is not likely that any question now presented in reference thereto will arise at another hearing, and we forbear their consideration. Judgment reversed, with instructions to sustain appellant’s motion for a new trial.
Note. — Reported in 113 N. E. 289. Right of action and proceedings to enforce it, in case of death by wrongful act, 70 Am. St. 669; 13 Cyc 316. Operation of a street railway car in violation of ordinance as negligence per se, 9 Ann. Cas. 840; Ann. Cas. 1913E 1100; 36 Cyc 1472. See under (8) 36 Cyc 1457; (9) 36 Cyc 1614.