54 Ind. App. 601 | Ind. | 1912
We scarcely think that the state of facts most favorable to appellee which could be deduced from the evidence in the case at bar would bring it within the first class mentioned above, for it seems that by the time plaintiff drove into such a situation that it was impossible for him to avoid injury, it was likewise too late for the motorman to have done so. But we believe that facts may be inferred from the evidence which would bring the case under thfe“ third class. It was the jury’s province to believe such portions of the motorman’s openly contradictory testimony as it saw fit. It may have believed that he saw plaintiff when fifty to ninety feet away from him, and that when he first saw him, his horses were very near to the track. If the motorman saw plaintiff under such conditions as would indicate to a person of reasonable intelligence and prudence that he was in danger from the car, or was about to expose himself to such danger, it was his duty to use every reasonable means to prevent injuring plaintiff. The evidence shows that plaintiff drove on the track without giving any indications of stopping, and did not see the ear until a second before it struck him, at which time he began to back his team, and was therefore, at the instant of the injury, not negligent. It was for the jury to find whether the circumstances under which he was seen by the motorman were such that they should indicate to the motorman that he was in danger or about to expose himself to danger, and whether, after seeing plaintiff in such circumstances, if he did so see him, the motorman by the use of ordinary care could have avoided injuring him. The case is close, but the evidence is such that we cannot say that reasonable men would not draw therefrom infei*ences of the existence of such a state of facts as to make defendant liable for plaintiff’s injuries, especially since such
Note.—Reported in 97 N. E. 176. See, also, under (1) 36 Cyc. 1571-1575; (3) 36 Cyc. 1605; (4) 29 Cyc. 530; (5, 6) 29 Cyc. 531; (7) 36 Cyc. 1565; (8) 36 Cyc. 1601; (9) 36 Cyc. 1638; (10) 38 Cyc. 1625; (11) 38 Cyc. 1816. As to the contributory negligence of children, see 1 Ann. Cas. 895; 17 Ann. Cas. 553; Ann. Cas. 1913B 969.