35 Ind. App. 312 | Ind. Ct. App. | 1905
Lead Opinion
Appellee’s complaint stated that on March 24, 1902, at about 11 o’clock a. m., he was driving a two-horse wagon eastward along the south side of Washington street in the city of Indianapolis, approaching Capitol avenue at the southeast corner of. the statehouse; that, as he was driving across the railway tracks on AVashington street in a careful and prudent manner, appellant caused one of its cars to be negligently run over said crossing at a dangerous rate of speed, to wit, twenty miles an hour, without signal, and negligently ran the same against his wagon, causing the injuries complained of. The issue was made by general denial. There was a trial by jury, and a verdict in favor of plaintiff for $700. The motion for a new trial was overruled, and there was judgment on the verdict.
The only assignment of error argued is that the court erred in overruling the motion for a new trial, and the question for decision is whether the evidence is sufficient to sustain the verdict.
The disposition of the appeal, therefore, depends upon whether this court may hold as matter of Iüav that appellee was guilty of contributory negligence.
The other class of cases are those in which there is a dispute as to what the facts are, or a dispute as to what inferences should be drawn from undisputed facts, in both of which cases, if there is room for a difference of opinion among reasonable men, the question is left to the jury, under instruction from the court as to the law. Chicago, etc., R. Co. v. Martin, (1903), 31 Ind. App. 308, 315; Citizens St. R. Co. v. Hamer (1902), 29 Ind. App. 426, 430; Baltimore, etc., R. Co. v. Walborn, supra; Railroad Co. v. Stout, supra. It is primarily necessary in each instance to determine under which of the foregoing classes the given facts bring the case.
If the facts exhibited come short of what is required to enable the court to declare contributory negligence, it is the misfortune of the defendant, the defense being an affirmative one by statute. If the existence of certain facts is inconsistent with such declaration, their absence must appear from the evidence in order that it may be made.
When the appellee stai’ted to drive across the tracks, the car which subsequently collided with his wagon was some distance away. What that distance was is one relevant fact. It may be of predominating importance, and it may be of very minor consequence. If the car had been stationary, its mere presence on the track would not be a menace. If its movement was such as to indicate an intention to stop, or so moderate as to suggest no likelihood of a collision, ho could not, in proceeding upon his way, be held blamable because of its mere presence. So that the rate of speed at which a car moves, the measure of control apparently exercised over it, as well as that actually maintained, must always be taken into account in connection with the fact of its presence, and it is necessarily true that no court can set up a standard of distance, and say that one who attempts to cross a street car track when a car is within that distance is guilty of negligence. Much less can it be said that one who attempts to cross in front of an approaching street car, irrespective of distance, is guilty of negligence. It has been adjudged not to be negligence as a matter of law to drive upon the track in front of a car, moving at an ordinary rate of speed, 50 feet away (Wells v. Brooklyn City R. Co. [1890], 12 N. Y. Supp. 67); 160 feet away (Union Traction Co. v. Vandarcook [1904], 32 Ind. App. 621); 125 to 150 feet away (Citizens St. R. Co. v. Damm [1900], 25 Ind. App. 511).
The driver of a vehicle has other duties than watching for street cars. lie must keep a lookout to avoid being struck by other vehicles of other qualities and kind, and must, before all, be vigilant to avoid colliding with and inflicting injuries upon others.
When the evidence shows that he was in nowise constrained, knowledge of what he- might have seen will be attributed to him, and knowledge or lack of knowledge as to the distance of the car, its condition as to being in motion or stationary, and, if in,motion, its rate of speed, the apparent purpose of the mot'orman to check or increase speed, and many other facts are necessarily relevant and of differing importance. Union Traction Co. v. Vandercook, supra.
The principal objection made to the instruction is that by
Judgment is therefore affirmed.
Robinson, P. J., Myers and Black, JJ., concur.
Comstock, C. J., and Wiley, J., dissent.
Dissenting Opinion
I am unable to agree with my associates in the conclusion reached in the prevailing opinion. My reasons for dissenting are two: (1) Because, from the undisputed facts disclosed by the record, it clearly appears that the appellee was guilty of contributory negligence, which should preclude his recovery; and (2) because of error of the trial court in giving instruction number four upon its own motion. I agree with the prevailing opinion in declaring that appellant was guilty of negligence, in that its servants in control of the car ran it at' too rapid a' speed, • considering the location of the point whore the collision occurred, and surrounding conditions. As I understand the rule applicable to the law of negligence, the negligence of which complaint is made, to create liability, must be unmixed from the negligence of the complaining party, where such negligence contributed to his own injury.
The facts exhibited by the evidence are fairly and fully stated in the opinion, and need not be restated at any length here. I do not find fault with the rules of law; so clearly and tersely stated, and forcibly supported by argument and reason, by my learned associate, who wrote the majority opinion, but, in my judgment, they are not applicable to the facts in this case.
Appellee was injured at the intersection of Washington ■street and Oapitol avenue. Over and along Washington street appellant maintains two street car tracks, upon which it runs cars. Washington street runs cast and west Cars going east are run on the south track, and cars going west on the north track. Appellee was driving a team of horses hitched to a wagon. The wagon was heavily loaded with sand. He was going east on the south side of Washington street, intending to cross the tracks at Oapitol avenue, and go north on that street. When he got to the point where he desired to cross he turned toward the tracks, and when
Appellee testified that after he had driven “up to the south track” he glanced toward the west and saw. nothing. It further appears by the uncontradicted evidence of two of appellee’s witnesses, that, just as he started to drive on the track, they knew he was running a great risk of colliding with the car. Ilis load weighed 4,500- pounds, and he was going about three miles per hour. The track was straight, for five squares, and there were no obstructions to obscure the view of the approaching car. The appellee himself said there were no other vehicles near him and nothing obstructed his movements. He said the street was clear as far as having a-good view was concerned. It was a clear day. He said he glanced to the west once, and that was all, and he did not see or hear the car. He could have heard the car for half a block, or about two hundred feet. He knew cars frequently passed the point where ho was injured.
It is clear from tire uncontradicted facts that when appellee started to cross the tracks the car that struck his wagon was only a short distance away, and running at a rapid rate of speed. There was nothing to obstruct his view of it, and it was in plain sight. Under these facts it was hazardous for him to attempt to cross. The fact that he says he did
A party asking another to respond in damages for an injury resulting from negligence can not close his eyes and ears, and rush into danger, and lay all the fault at the door of his adversary, and thus escape the consequences of his own negligent acts, when such acts contribute to his injury. The conduct of appellee shows a wanton indifference on his part to his own safety. As was said in Robards v. Indianapolis St. R. Co. (1904), 32 Ind. App. 297: “He needlessly exposed himself to danger he had good reason to believe was imminent. He used neither his sense of sight nor hearing, when the use of either would have enabled him to have avoided his injury. That this was negligence we need to cite no authorities. The general verdict, finds he was free from contributory negligence. The facts show affirmatively that he did not exercise ordinary care.”
As between travelers upon public streets and street railway companies operating street cars thereon, there are reciprocal duties and obligations. While they each have equal rights upon the streets, the traveler must sometimes yield to the right of the company, because the way of the latter is distinctly marked, and its cars can not vary from their course. The reciprocal duties just 'referred to are well defined by the authorities, and by them the question is put beyond the pale of legitimate debate or argument.
The obligation of a traveler upon a street, who is intending and is about to cross street railway tracks, has been clearly and forcibly stated by this court in the case of Marchal v. Indianapolis St. R. Co. (1901), 28 Ind. App. 133, as follows: “Street crossings of railways are places of danger. Every person must use due care before crossing them. Misconduct upon the part of the railway company will not excuse the performance of that duty upon the
He did not exercise ordinary care and prudence, but by his own act contributed to his injury. This is sufficient to prevent his recovery, and where there is no conflict in the evidence the court has a right to adjudge, as a matter of law, that he was negligent. Where the negligence of two persons is contemporaneous, and the fault of each operates directly to cause the injury, the rule deducible from the authorities is that the plaintiff can not recover if, by the exercise of ordinary care on his part, he might have avoided the injurious results of the defendant’s negligence. Evans v. Adams Express Co. (1890), 122 Ind. 362; Mayhew v. Burns (1895), 103 Ind. 328; Murphy v. Deane (1869), 101 Mass. 455; DeLon v. Kokomo City St. R. Co. (1899), 22 Ind. App. 377.
It is the rule, supported by all the authorities, that, where negligence is the issue, it must be a question of unmixed negligence. If the want of ordinary care and prudence contributes to the injury, there can be no recovery. DeLon, v. Kokomo City St. R. Co., supra; Ft. Wayne, etc., R. Co. v. Gruff (1892), 132 Ind. 13; Louisville, etc., R. Co. v. Lockridge (1884), 93 Ind. 191.
I affirm that the law declared in the authorities cited, when applied to the facts in this case, should prevent appel
The second reason why the judgment should be reversed is because of the error of the trial court in giving instruction number four. As this instruction is set out in the prevailing opinion, I need not repeat it here. In the instruction the court told the jury, among other things, that “The rate of speed at which a car may be safely run is not the same at all places or under all circumstances. A car may be run at a higher rate of speed in the suburbs -or sparsely settled parts of a city than it may be in a thickly settled, populous or crowded portion thereof; and, in determining the question as to whether the car in controversy was run at a dangerous and unsafe rate of speed, you should take into consideration the time, location and conditions surrounding the accident.” This was equivalent to telling the jury that the appellant was required to use greater care in running its cars in a populous city and upon crowded streets than in sparsely settled districts and upon streets where travel is light. .
The evidence in this case shows that the accident occurred in the down-town or populous part of the city. In my judgment, the fact that the location of the accident was in the thickly settled portion of the city did not give the court the right to say as a matter of law that the rate of speed was or was not negligent. The evidence, without conflict, shows that at the time and place of the accident there were no other vehicles in close proximity to the intersection of the two streets, that there was no obstruction to the view, and that there were few travelers in that immediate vicinity. The mere question of location can not determine the rate of speed at which a street car may bo properly run. The court told the jury by this instruction that they should consider the location, etc., and by so instructing the jury the court substantially said to them that they should find the defendant negligent if they found that it ran its car at the place of the
The court further said: “While, as a matter demonstrated by common experience, it may be true that greater care in the operation of street cars is necessary to avoid accidents in populous cities or crowded streets or highways than is necessary in ‘sparsely settled districts or on streets or highways where there are few travelers,’ nevertheless such a question, so far as it is involved in the case at bar, was a matter of fact to be decided by the jury, and not a matter of law to be announced by the court from the bench.”
In Goodwin v. State (1884), 96 Ind. 550, the court said: “It is proper for the court to direct the minds of the jury to the facts of the case, but it is not proper for it to annex weight and value to them; that is the exclusive province of the jury.”
Whether a street car may be run at a higher rate of speed in the suburbs and sparsely settled parts of a city than it may be in the thickly settled, populous or crowded portion thereof, is a question of fact within the exclusive province of the jury to determine. And when the court told the jury what it did in that part of the instruction above quoted, it thus invaded the province of tire jury. In my judgment the giving of instruction number four was reversible error.
For the reasons herein stated, the judgment should be reversed.
Rehearing
On 'Petition for Rehearing.
Appellant’s learned counsel have filed a brief in support of the petition for rehearing, in which they state their position with earnestness and unusual candor. The legal propositions heretofore expressed are not controverted, but a line of argument is presented which is entitled to more than passing attention.
The foundations of government may bo undermined quito as effectually through the assumption of arbitrary power by existing tribunals as through the creation of new and independent ones. The self-respecting independence of the individual citizen may be quite as well destroyed by the aggressions of powerful combinations now as it could have been by that of the nobility or aristocracy of earlier days. American liberty is safer while the courts follow Blackstone than it will be when they , follow those who hold a different point of view.
In Moran v. Leslie (1904), 33 Ind. App. 80, the injured person was perfectly cognizant of the risk, took his chance, and lost. The principle applicable to all cases, and heretofore stated, is that no man has the right to calculate close chances as to his ability to reach the track before the car. Whether the chance was close, viewing it as appellee did in the light of conditions then known to him (the fact that a collision did afterward occur not being one of them), was a question of fact. What facts he knew and what facts he ought to have known in view of the conditions and circumstances surrounding him were likewise questions for the ] ray-
Petition overruled.
Robinson, P. J., Myers and Black, JJ., concur. Corn-stock, C. J., and Wiley, J., dissent.
Concurrence Opinion
I concur in the dissenting opinion, on the ground that the evidence shows that appellee- was guilty of contributory negligence.