33 Ind. App. 297 | Ind. Ct. App. | 1904
Lead Opinion
This cause originated in the Marion Superior Court, from whence it was venued to the court below. Appellee’s decedent was riding a bicycle on one of the public streets of the city of Indianapolis, and while attempting to cross appellant’s tracks he came into collision with one of its cars, and was killed. Appellee prosecuted this action to a successful termination in the court below to recover damages for the death of his decedent, which was imputed to appellant’s negligence. As no question is argued touching the sufficiency of the pleadings, they need not be noticed in this connection. Trial hy jury, verdict and judgment for appellee for $850. The jury found specially, also, by answers to interrogatories. Appellant’s motions for judgment on the answers to interrogatories and for a new trial were overruled. The only questions argued arise under the assignment of error questioning the correctness of these rulings.
The negligence imputed to appellant was the the careless and reckless operation of one of its cars being run on Virginia avenue, as it approached the intersection of Louisiana and New Jersey streets, in that it was run at a dangerous and reckless rate of speed, and that no warning was given to appellee’s decedent of its approach, by the sounding of the gong or otherwise. There are many facts found, as disclosed by the answers to interrogatories, that are wholly unessential and immaterial to the determination of'the legal questions involved. Those questions are: (1) Do the special facts found show that appellant Was guilty of the negligence charged? (2) Do they show that appellee’s decedent was free from negligence ? If they do, then such special findings are in harmony with the general verdict. But if they disclose the fact that appellant was thus negligent, and that the decedent was guilty of negligence that contributed to his death, then there is irreconcilable conflict between the general verdict and the answers to interrogatories. In such case the rule is firmly estab
The facts specially found do not overcome the general verdict as to the negligence of appellant. On the contrary, by them its negligence is emphasized, for it is shown that it ran its car over and upon a public street at the rate of twenty miles per hour, approaching the intersection of three streets, where persons on foot and in vehicles were likely to be traveling in different directions, and apparently heedless of the rights of travelers on such streets. Such conduct must be regarded as negligence.
The remaining question — the decedent’s negligence or non-negligence — is more difficult to determine. The facts upon which the determination of this question depends may be summarized as follows: The decedent was a man of mature years and judgment, and was in the possession of his senses of hearing and seeing. He was a man of average strength, judgment, and intelligence. The accident occurred in Virginia avenue where it intersects Louisiana and New Jersey streets. Said avenue runs northwest and southeast, is fifty feet wide between the curbs, is paved with asphalt, and has sidewalks on either side twenty feet wide. Along said avenue there are two street car tracks, and cars were operated frequently thereon. New Jersey and Louisiana streets are ninety feet wide from property line to property line where they intersect with Virginia avenue, and at said intersection a large space is formed at that point. There is a heavy grade from the intersection of the three streets on Virginia avenue leading to and over the viaduct. Decedent was riding a bicycle, and was a competent and experienced rider. He could have stopped his bicycle in a distance of ton feet, at the rate of speed he was going. He was familiar with the location and surroundings, and knew that cars Were frequently passing to and-fro on the double tracks on Virginia avenue. He was
These facts disclose two controlling conditions: (1) That at all times after he had entered on Virginia avenue
The judgment is reversed, and the court below is directed to sustain appellant’s motion for judgment on the answers to interrogatories.
Black, C. J., Comstock, Robinson, and Henly, JJ., concur. Roby, P. J., dissents.
Dissenting Opinion
Dissenting Opinion.
The jury in this case returned a general verdict for the plaintiff, together with answers to certain interrogatories which had been propounded to them. The examination as to the merits of this appeal made by the court, as shown by the opinion heretofore filed, does not include more than a consideration of answers to interrogatories, and judgment for the defendant notwithstanding the general verdict was directed thereon. With.this disposition I am not able to agree. The process followed, as disclosed by the opinion, is subversive of well-established and firmly-settled principles of law which are binding upon this court.
The questions involved are stated by the learned writer of the opinion as follows: (1) “Do the special facts found show that appellant was guilty of the negligence charged ?” (2) “Do'they show that appellant’s decedent was free from negligence ?”
If a special verdict were under consideration, no general verdict having been returned, then the first proposition, thus stated, would be correct. If this court were acting as a jury, unfettered in law' as well as in fact by any previous proceeding, the proposition would indicate one question for its decision. The jury stage has been passed, and the general verdict in his favor relieves appellee from the necessity
The second proposition stated is of the same quality as the first. The learned writer of the opinion marked out the task of determining whether the freedom from fault of the plaintiff was affirmatively shown, by the findings; again forgetting the effect of the general verdict and ignoring the rule which has been stated and reiterated by this court a great many times. If the statement of the second point for decision is correct, then, also, §359a Burns 1901, declaring contributory negligence to be a matter of defense, is judicially and by implication repealed, since the burden is, in the opinion, placed upon the plaintiff. The issue upon this branch of the case, correctly stated, is, do the facts exhibited by the answers show that appellant’s decedent was negligent? — not free from negligence. Having started upon a basis as incorrect as ingenuity can devise, an enumeration of “facts upon which the determination of the. appeal depends” is set forth in the main opinion.
In addition to the facts enumerated in the main opinion are those which “might have been proved under the issue,” and also a number found by the jury, which, in the opinion of the writer, are not “immaterial” and “nonessential,” and for the elimination of which no warrant of law exists. They are readily discoverable from a comparison of the following summary of the facts stated in the answers to interrogatories with the statement of the main opinion. Decedent was fifty-five years of age at the time of the accident complained of, which was July 26, 1901. He had good eyesight, hearing, health, and also good use of his arms and legs. He had no impairment of mind or faculty, and was of average strength and intelligence. He was a painter, accustomed to earn $32 a month. He was an experienced bicycle rider; had been riding one about a year. He knew how to manage the bicycle, and within what distance he could stop and turn. He could stop at the rate he was riding within ten feet. He could turn so as to change his course within eight feet. He could have alighted after he came into the roadway of Virginia avenue, and before he reached the railway tracks. There was nothing to prevent his so doing, and lie was not prevented from so doing. He was prevented by wagons from turning aside in the roadway before he reached the car track. He could not, after coming into the roadway, have turned out of the way of the car. He was prevented from so doing. He could not have stopped after he came into the roadway before reach
The accident occurred on Virginia avenue, in Indianapolis, at the intersection of Louisiana and New Jersey streets. Virginia avenue ran northwest and southeast; was fifty feet wide from curb to curb, with sidewalks twenty feet wide on each side,' and was paved. There were two car tracks laid thereon, each four feet eight inches in width, and laid so as to be equally distant from the center of the street. They were five feet apart. Cars propelled by electricity ran over the street frequently, those going southeast using the west track. New Jersey and Louisiana streets were each ninety feet wide. Beginning at the north side of the open space formed by the intersection of the three streets named there is an up grade of five feet in 500 feet, extending 100 feet northwest, approaching a viaduct. The distance from the west property line of the avenue to the west rail at the place of the accident was thirty-seven and six-tenths- feet. Decedent was struck by a car going south on the west track. The car was about fifteen feet high, between seven and eight feet wide, and was painted yellow. It was running at the time of the collision about twenty-two miles an hour. Its average speed, while it ran the last 500 feet before striking him, was twenty miles an hour. If he had listened for it he could have heard the car 100 feet away. The accident occurred in the daytime, at 6 o’clock. The weather was dry and clear. Decedent was going home from work. He had lived in Indianapolis three years. This street intersection was his usual place of crossing the car tracks on his way to and from Work. He was familiar with the situation and the operation of cars there. He came from the south on New Jersey street, about its center, until twenty feet from the west rail, at about six miles an hour, then turned east to cross the tracks, riding at about eight miles an hour. He increased his
These answers, as returned by the jury, among' other things disclose that deced.ent had neither opportunity nor time to stop or turn aside after he discovered, or could have discovered, that the car was in dangerous proximity. It is not shown that he knew or that he should have known that the car approaching was being run at the rate of twenty-two miles an hour, and it must therefore be presumed -that he did not know such fact, and,, indeed, it is so found in terms. It is true that there is a' finding to the effect that he was familiar with the streets and the operation of the cars at that point, but it is not shown that appellant habitually ran its cars at the dangerous rate of speed of twenty-two miles an hour.
It will be presumed in the absence of contrary proof that appellant -habitually ran its cars .at a safe rate of speed at that point, and with due regard to the lives and limbs of its patrons and the public, and that decedent therefore acted upon the assumption that this particular car would be so run. His familiarity with the place and the manner in which appellant’s cars were operated became, therefore, a strong circumstance tending to relieve him from any imputation of negligence. The jury may have considered the fact, as this court has evidently not done, that had the car been running at such a rate as he had the right to anticipate —say at six miles an hour — the decedent could not have been in any possible danger through attempting to proceed on his homeward journey. Indeed, had its speed been increased to ten or fifteen or eighteen miles an hour, no accident would have occurred to him; and had the car been under control at the crossing, as it was the duty of the appellant and its motorman to have it, and as he had a right to presume it was, there would have been no danger. The duty of the motorman, in the light of which the decedent acted, is clearly stated by the Supreme Court as fol
It appears that the car projected over the track sixteen and one-half inches, so that, when the decedent’s view was no 'longer obstructed by the wagons he was between four feet and eight inches and five feet and eight inches, or, as has been found by the jury, five feet, from the danger point. This was further reduced by the distance that the forward wheel of the bicycle was in advance of the rider. It thus affirmatively appears that no negligence is shown by the answers to interrogatories to have existed upon the part of the decedent, except as it is deduced by this court from the single fact that when the car was from two hundred fifty to one hundred twenty feet distant he might have seen and heard it had he looked and listened. In other words, it is held, as a matter of law, that one attempting to cross a public street in the city of Indianapolis, in front of an electric car from two hundred fifty to one hundred twenty feet distant, is guilty of contributory negligence. It is undoubtedly true that circumstances might exist which would require a conclusion of that sort, but in the case at bar no such circumstances are shown or hinted at by. the answers to interrogatories, and their existence is negatived, not only by the general verdict, but by the specific facts returned.
Among other facts, not considered in the majority opinion, the jury found, in answer to interrogatories, that the
In the recent case of Baltimore, etc., R. Co. v. Cavanaugh (Ind. App.), 71 N. E. 239, this court said: “Said instructions twenty and twenty-one are open to the objection that they, in effect, hold appellee’s failure to use the best judgment and to do the best thing, that, under the circumstances, could have been done, to be negligence. They fix too high a standard of diligence. The rule requires one to act as an ordinarily prudent man would, similarly situated.” This is the standard of conduct prescribed by right reason and declared by law. By it the conduct of the decedent should be judged. Without elaboration, and with the utmost deference to my associates, I respectfully submit that the mandate directing judgment notwithstanding the general verdict is based upon-a ruisapprehension of the facts involved, and a misunderstanding of the applicable law.