39 Ind. App. 169 | Ind. Ct. App. | 1906
Lead Opinion
Action by appellee. Verdict and judgment against appellants for $6,000. Their motion for judgment on interrogatories returned by the jury was overruled, as was also their motion for a new trial, and said rulings are assigned as error.
The complaint was in four paragraphs. The jury were instructed to.find for the defendant Indianapolis Street Railway Company upon the fourth paragraph. The issue upon the remaining ones was formed by a general denial. It is alleged in the first paragraph that the Indianapolis Street Railway Company negligently ran one of its cars along Illinois street, in the city of Indianapolis, at a dangerous and reckless rate of speed, to wit, twenty miles an hour, and while so running at said high and dangerous rate of speed negligently ran its car into and against 'a horse and buggy driven by appellee, thereby inflicting injuries upon appellee. The second paragraph alleges that said company negligently ran one of its cars along said street at a dangerous, unusual, and reckless rate of speed, and, while so running, carelessly and negligently ran said car against the horse which appellee was driving, and the buggy in which he was riding, injuring, etc.; that appellee was traveling on the east side of Illinois street, and when said car was distant several'hundred feet from him, and when it was to him, and would have been to any ordinary person, under similar circumstances, in the exercise of ordinary and reasonable care, apparently safe to cross the tracks of said company, he started across the tracks of said company, crossing from the east to the west side of said Illinois street; that after plaintiff had gotten across the east track of said defendant company, and had started across the west track, he saw that said car was coming at an unusual, excessive and reckless speed, and that the motorman' in charge thereof was not slackening the speed of the car, and at said time realizing that he could not safely get across the west track of said defendant company — said car being
The answers to interrogatories show that there were two car tracks in Illinois street, four feet, eight and one-half inches apart, the rails of which Avere laid even with the 'pavement, and that the roadway on each side of said tracks was fourteen feet wide. Oars going south used the west' track, and those going north, the east track. Plaintiff was driving a horse and buggy north along the east side of the street, and the car with which he subsequently came in collision was coming from the north. lie turned to go across the track, intending to go south on the west side of the street, to a residence at which he wished to stop. There was nothing to prevent his seeing the car, and nothing to prevent the motorman’s seeing him. Erom the time he turned in the direction of the track, until.he was struck, he moved about fifteen feet, at the rate of about four miles an hour. The car, when he first began to turn, was about two hundred ánd twenty-five feet north of him. Illinois street was intersected by Twenty-ninth street at a point about one hundred and sixty feet north of him. The car was running at the rate of twenty miles an hour. When the car was about sixty feet distant he first discovered the rate of speed at which it was going, and acted quickly in attempting to avoid a collision. The answers do not say in what such action consisted. Its particulars are involved in the motion for a new trial, and are. shoAvn by the evidence. It is further stated by the answers that when he first saw the car he paid attention to its speed, which he underestimated because of the distance intervening. He did not know it, was dangerous to try to cross the track, and was prevented from knowing it because of the distance
The language above quoted, which so well expresses the primacy of the jury with regard to facts in issue, was directed to the action of a trial judge in instructing a jury that greater care in running a car is required in populous cities and crowded streets than in sparsely settled districts
The ear was run at a high speed — twenty miles an hour —up to the very time of the collision, as found by the jury in answer to interrogatories, although there was evidence that it was running at a still higher rate. The evidence of
Judgment affirmed.
Dissenting Opinion
The facts specially found disclose that, at the time of the accident appellee was forty years old, in the full possession of his physical and mental faculties. lie was driving a gentle horse, under complete control, which he might have stopped at any time or place. When his horse was on the east track nothing prevented appellee’s knowing the close proximity of the car. All his' acts in attempting to cross the tracks were voluntary. There was no necessity or emergency controlling his movements. Nothing was done by appellant to mislead or deceive him, or throw him off his guard. The car was coming toward him, and he could'have observed its movements at all times when it was within five hundred feet. When the horse began to turn toward the tracks, the car was about two hundred and twenty-five feet away; and when it was on the east track, one hundred and twenty-five feet away; and when on the space between the two tracks, sixty feet away. He made a miscalculation of the time he would have to cross in front of the car, and concluded that he would have time to cross the track. When he was ten feet from the place of the accident he was traveling about three miles, and the car about twenty miles, an hour and one hundred twenty-five feet - away. When he was twenty feet from the place of the accident he was trayeling about five miles, and the car about twenty miles, an hour and two hundred twenty-five feet away. When he was thirty feet from the place of the accident he was traveling five or six miles, and the car twenty miles, an hour. He first came into danger when he was about ten feet from the place of the accident, which distance he traveled until he was struck. He did not think to observe the car while he was driving over the east track and the space between the tracks. Plaintiff was familiar with the location and all its conditions. The accident happened in a sparsely settled part of the city, one hundred sixty feet from the nearest
While all reasonable presumptions are indulged in favor of general verdicts, yet if the answers returned by the jury are irreconcilably in conflict therewith, they will overthrow the general verdict. While the general verdict finds that the plaintiff was free from contributory negligence, the facts specially found show plaintiff to have, been guilty of contributory negligence, and are irreconcilably in conflict with that verdict. Cleveland, etc., R. Co. v. Heine (1902), 28 Ind. App. 163; Bedford Quarries Co. v. Thomas (1902), 29 Ind. App. 85.
The majority opinion overthrows a doctrine, well recognized, that one cannot hold another responsible for errors of his own judgment. In effect it says, that to be excused
From the facts specially found I am clearly of the opinion that appellee was shown to be guilty of contributory negligence which would preclude his recovery. If the doctrine declared in the prevailing opinion is to obtain, it seems to me that the rule of contributory negligence is taken out of cases of this character.