22 Ind. App. 515 | Ind. Ct. App. | 1899
— The appellee, George E. Helvie, was the plaintiff in the court below and commenced this action against appellant to recover damages for injuries received by him on'account of the alleged negligence of appellant. The complaint was in one paragraph. The lower court overruled appellant’s motion to make the complaint more specific, and its demurrer to the complaint for want of facts. Appellant answered the general denial. There was a trial by jury, and a special verdict returned, at appellant’s request. The special verdict is in the form of interrogatories and answers. Both parties to the action moved for judgment upon the special verdict. Appellee’s motion was sustained; that of appellant’s overruled. Appellant’s motion for a new trial was overruled, and judgment rendered in favor of appellee. Appellant, in its assignment of errors, questions the action
The facts upon which appellee depends for his judgment against appellant, as disclosed by the special verdict, are as follows: The appellant, a corporation, operated a street railway upon and over Jackson street in the city of Muncie, Indiana, on the 10th day of April, 1896, and over and upon Jackson street, a highway westward from the city of Muncie, to and through a suburb of said city known as West Side. That appellant’s cars were propelled by electricity. Its track was situated along the north side of Jackson street, westward through West Side. There was a street in West Side on the north side of Jackson street known as Dick street, which extended north from Jackson street. Appellant had operated its road along Jackson street westward from the city of Muncie to and beyond Dick street for three years prior to April 10, 1896.. There was an ordinance in the city of Muncie in full force and effect passed on the 17th day of July, 1893, as follows: “Be it ordained by the common council of the city of Muncie, that the speed of any steam motor propelling any car or cars within the limits of the city of Muncie shall not exceed the rate of ten miles per hour; provided that at all the crossings of the streets, the speed shall be reduced to six miles per hour, except at places where said steam or electric motors cross the track of any other street railway. At such places the said steam or electric motors shall be brought to a full stop.” Appellant’s track was on a level with the street at the point where Dick street leads north from Jackson street. Appellee is a man forty-seven years old, a teacher of vocal and instrumental music of twenty years’ experience, and had no other business or profession; he received, as the result of his labors as a teacher,
In order to sustain the judgment for appellee in this cause, it must appear from the special verdict that the appellant was guilty of negligence, which was the proximate cause of appellee’s injury, and that appellee was free from contributory fault. Conceding, without deciding, that the special verdict shows that appellant’s negligent act resulted in appellee’s injury, then the question arises — if appellee had acted as a reasonably prudent man would have acted in the same situation, would the injury have occurred?
The situation of the highways and track are shown by the above cut. As appellee drove west to where Dick street led off to the north, the car was coming toward him upon a level ti*ack with nothing to obstruct his vision for a distance of more than 1,000 feet; the ear was carrying a brilliant electric headlight, and there were flambeaux at the crossing. Driving along at a gait of four to six miles per hour, without decreasing his speed, upon a level road, with the street car rails level with the surface of the street, he turned north, and attempted to cross the tracks‘in front of the car which he plainly saw approaching, and before the horse had passed entirely oyer the south rail of the track, it was struck by the
It is held in the case of Young v. Citizens Street R. Co., 148 Ind. 54, that one is guilty of contributory negligence in attempting to cross a street railway track without looking and listening. Also see, McGee v. Consolidated Street R. Co., 102 Mich. 107, 60 N. W. 293, 26 L. R. A. 300; Carson v. Federal Street, etc., R. Co., 147 Pa. St. 219, 23 Atl. 369, 15 L. R. A. 257; Fritz v. Detroit Street R. Co., 105 Mich. 50, 62 N. W. 1007.
The use of appellee’s senses of sight and hearing woujd have enabled him to escape the injury, and the failure of appellant to do its duty will not excuse appellee from his failure to see and observe the approaching car, and to use ordinary care to avoid injury. This rule of law needs no discussion or authorities to sustain it. The reports of the Supreme and Appellate Courts of this State are burdened with the often repeated, well established rules of law applicable to cases, .arising from negligence. He could have heard and could have seen the car, and it is presumed that he both -heard and saw it. The jury find that appellee saw the car when it was 210 feet from the intersection of Dick street; that he saw it no more until it struck the horse. The facts found by the jury showing contributory negligence upon the part of ap