27 N.E.2d 358 | Ind. | 1940
The appellee, as administratrix of the estate of Bert C. Rutledge, recovered a judgment against the appellant for negligence resulting in the death of her decedent. This appeal is from the denial of the appellant's motion for a new trial. The facts are not materially in dispute and the questions presented resolve themselves into one of law. A description of the place where the accident occurred and the circumstances attending it are essential to a presentation of the case.
Ohio Street in the City of Indianapolis runs east and west and intersects Pennsylvania Street at an angle of 90 degrees. Massachusetts Avenue extends northeast from said intersection at an angle of 45 degrees to Ohio Street. Ohio Street and Massachusetts Avenue each carry two parallel car tracks. The south track on Ohio is for the accommodation of east bound cars and the southeast track on Massachusetts is for cars proceeding northeasterly on said avenue. Said described tracks are connected by a curved switch in said intersection. There is room for two lines of east bound vehicular traffic between the south track on Ohio Street and the south curb thereof. A traffic lane for the use of pedestrians, approximately 16 feet wide, connects the sidewalk along the west side of Pennsylvania Street north and south of Ohio, and there is a safety zone about six feet wide between the south track on Ohio *463 Street and the vehicle lane extending west from the crosswalk.
The decedent approached the intersection of Ohio Street and Pennsylvania from the north along the sidewalk on the west side of Pennsylvania. A traffic officer was stationed in the intersection. When the decedent reached the curb of Ohio Street the officer was directing traffic north and south on Pennsylvania Street. One of the appellant's east bound interurban cars was standing west of the crosswalk. The decedent attempted to cross Ohio Street in front of said interurban. As he passed the car the officer signaled for the traffic to proceed east and west along Ohio Street and the decedent stopped in the safety zone. Two parallel lines of automobile traffic immediately started east along the south side of Ohio Street and over said intersection. A few seconds later the interurban also started. Normally, the south side of the car extended two feet over the south rail. The car was 60 feet in length and as it turned northeasterly into Massachusetts Avenue the back end thereof swung into said safety zone an additional two feet. The decedent could not proceed across Ohio Street because of the moving automobile traffic which he faced, and he was struck on the head by an extending door handle as the rear end of the car swung into said safety zone. The decedent suffered a fractured skull, either from the blow of the moving car or from a resulting fall, from which he died.
The motorman operating the car gave undisputed testimony that when he started forward the way ahead was clear and that he did not see the decedent prior to the accident. Other witnesses said that the space between the east bound vehicles on the south side of Ohio and the southwest corner of the car as it turned northeast *464 into Massachusetts where the decedent was standing when he was struck, was about one foot wide.
The traffic lane for pedestrians across Ohio Street and the safety zone parallel to the south rail of the south track were marked on the pavement, pursuant to a municipal ordinance of the City of Indianapolis, which provided among other things:
"Section 15. Pedestrians' Right of Way: (a) The operator of any vehicle or street car shall yield the right of way to a pedestrian crossing the roadway within any marked crosswalk . . . except at intersections where the movement of traffic is being regulated by public officers . . . but at all places a pedestrian having lawfully started across a street at an intersection shall have the right of way until such pedestrian has reached the opposite side of the street."
The theory and essential ingredients of actionable negligence are tersely stated in Faris v. Hoberg (1893), 134 1-3. Ind. 269, 274, 275, 33 N.E. 1028, as follows:
"In every case involving actionable negligence, there are necessarily three elements essential to its existence: 1. The existence of a duty on the part of the defendant to protect the plaintiff from the injury of which he complains; 2. A failure by the defendant to perform that duty; and, 3. An injury to the plaintiff from such failure of the defendant.
"When these elements are brought together, they unitedly constitute actionable negligence. The absence of any one of these elements renders a complaint bad or the evidence insufficient.
"As a question of evidence, the facts are given to the jury, and if there is no evidence whatever as to one of the three elements, then, as a question of law, the plaintiff has failed, and the court may direct a verdict for the defendant."
The appellant most earnestly insists that under the facts summarized above there was no duty on the operator *465 of the interurban car to keep a lookout to the side and rear of such car so as to be able to warn pedestrians or other travelers upon the street of the danger from the overhang or outswing of such rear end, and that inasmuch as the motorman did not actually see the decedent and appreciate that he was in a place of imminent peril, the appellant was not shown to be guilty of any negligence. Upon this assumption all the alleged errors are predicated, and the case may be considered without particular reference to the specific assignments by which they are presented to us.
The law applicable to situations akin to the one at bar has been declared by a number of courts of other jurisdictions. Most of these cases have been collected and annotated in 9 N.C.C.A. 678, 17 N.C.C.A. 635, 23 N.C.C.A. 849, and 28 N.C.C.A. 617. The appellant relies principally upon seven cases which we shall review.
Hering v. City of Detroit (1928),
"The fact that a street car will overhang at the rear end in rounding a curve is of such common knowledge that pedestrians are presumed to know it, and the car operator has no duty to warn them of it. The motorman may assume that pedestrians will not put themselves in the way of the overhang, or, if in a place of danger, will step out when injury threatens. Consequently, the motorman is not bound to keep watch of the overhang zone until the rear of a car has cleared it, but is free to discharge his duty of lookout ahead and to operate his car in the manner generally recognized as careful." *466
It was then stated that the ordinance establishing the safety zone did not impose any special duties upon the operators of cars, and that there was ample room for the decedent to step out of the place of danger. The court guarded its conclusion with the observation that:
"Special circumstances, however, impose special obligations upon the operator of a car rounding a curve."
Duteau v. Seattle Electric Co. (1907),
"`When a motorman sees a man ahead of him alongside of the track, or approaching the track upon which his car is traveling, and this man is apparently able to take care of himself, there is nothing about the appearance of the man which indicates any inability to care for himself, the motorman has a right to assume that this man will act as an ordinary, careful, prudent man would act under such circumstances, and it is not necessary for him to stop his car until he sees that this man is in a position of apparent danger.'"
Gribbins v. Ky. T. T. Co. (1912),
Miller v. Public Service Corp. of N.J. (1914),
In Kelly v. Chicago City Ry. Co. (1918),
"It is the general rule . . . that a motorman may rightfully assume, in rounding a curve, that an adult person standing near the tracks and apparently able to see, hear and move, and who has knowledge of the curve in the track and that in rounding a curve the rear end of a street car will swing beyond the track, will draw back and avoid injury, and the motorman is under no obligation to warn such person against such open and obvious danger." *468
It is to be noted that the rule stated is restricted to those situations where the pedestrian is able to see, hear, and move to avoid the injury. In the case at bar there was evidence that the decedent had no opportunity to reach a place of safety. He was between the moving interurban car and the double line of motor traffic.
Zalewski v. Milwaukee E.R. L. Co. (1935),
We do not agree with the Supreme Court of Utah in Miller v.Utah Light and Traction Co. (1939),
"So too the law does not require operators of street cars or motor buses to keep a lookout to the rear to see that adults apparently in full possession of their faculties do not either move into the side of a car passing in front of them or unnecessarily place themselves in a position to contact the overhang of the car on a curve."
At the risk of extending this opinion, it seems proper to point out again that Rutledge was not in the wrong in undertaking to cross Ohio Street, the traffic signal being with him when 6-9. he started, and that by the terms of the city ordinance he had the right to continue on his way in preference to vehicles until he reached a place of safety. The motorman was chargeable with such knowledge of the situation as the exercise of ordinary care on his part would have disclosed to him. The jury was therefore warranted in inferring that the motorman saw or ought to have seen the decedent as he passed in front of the car and ought to have known that the decedent did not have time to reach the south curb after the traffic was changed. The motorman was likewise charged with knowledge of the extent that the outswing of the rear of the car would encroach on the safety zone, and that the motor *470
traffic, which started immediately before the car moved, would cut off the possibility of the decedent proceeding further. In short there was such a showing of facts that the jury might have inferred, as it evidently did, that the motorman knew or ought to have known that the decedent was in a place of extreme peril, without fault on his part, when the car was started. Upon this assumption of facts, the jury was justified in concluding that the motorman was negligent, and we would not be warranted in disturbing that conclusion. We are supported in this view by the following cases: Bryant v. Boston Elevated Railway (1912),
The case at bar is to be distinguished from those that involve pedestrians who knowingly place themselves in positions of peril, or come into dangerous proximity with cars without the 10-12. knowledge of the operators. Motormen may, of course, assume that pedestrians will exercise care commensurate with the risks to which they voluntarily expose themselves, and they have no duty to keep a lookout to the rear and sides of their cars in the absence of circumstances reasonably calculated to require such precaution. The appellant's suggestion that the decedent might have avoided injury by moving parallel with the car to a point of safety is not persuasive. The prudence of his conduct must be measured in the light of the situation as it appeared to him at the time, rather than as deliberate calculation might have demonstrated what it should have been, after the accident occurred. The emergency with which he was suddenly confronted was such that the question of whether he was guilty of *471 contributory negligence was one of fact for the jury rather than of law for the court.
The judgment is affirmed.
NOTE: Reported in
