89 N.E.2d 905 | Ind. | 1950
This is an appeal from a judgment rendered on a verdict, in the sum of $7,000 for personal injuries on an action brought by Corinne Burk, hereinafter referred to as the appellee, against the appellant and appellee Cyrus V. Hill.
The second amended complaint charged concurrent negligence by the appellant and Cyrus V. Hill which proximately caused the injuries. When the facts in evidence, together with all reasonable inferences to be drawn therefrom, are considered most favorable to the appellee Burk, the jury was justified in finding the collision happened in the following manner: Mishawaka Avenue in the City of South Bend, is a four lane public street, approximately 45 feet in width from curb to curb, running east and west and for several blocks east and west of the place of collision there were no curves or hills to obstruct the view. The night of January 6, 1944, at about 11:00 o'clock, the appellee became a passenger on appellant's bus, which was traveling east on Mishawaka Avenue, and arrived in front of a factory site on the south side of the avenue, where it stopped to take on about 25 passengers who had been working in the factory. The bus driver did not stop the bus parallel with the curb, but stopped at about a thirty degree angle with the curb line, with the front wheels being five feet from the curb and the rear end extending out into the next traffic lane. There was no ordinance of the city authorizing angle parking, and Mishawaka Avenue was not a part of the state *168 highway system. The bus was eight feet wide and 22 feet long; the inside of the bus was lighted, and the headlights and tail lights were burning. The night was cold and the pavement dry. The appellee was sitting on the left side of the rear seat when Hill, who had shortly before drunk some beer, drove the automobile eastward toward the scene of the collision.
Another automobile, with its lights burning, was approaching the place of collision from the east. Two women came from the front of the bus to cross the street, and Hill, who was driving at a negligent rate of speed, in order to avoid hitting the women and the car approaching from the east, drove his automobile into the rear of the bus, throwing the appellee from her seat and injuring her.
The errors assigned in the motion for new trial necessitate the proper construction of § 47-2123, Burns' 1940 Replacement,1 which is § 109 of ch. 48 of the Acts of 1939 ("Uniform Act Regulating Traffic on Highways"). This section provides:
"Except where angle parking is permitted by local ordinance for streets under local control and by order of the state highway commission on streets and highways in the state highway system, including the routes thereof through cities and towns, every vehicle stopped or parked upon a roadway where there is an adjacent curb shall be so stopped or parked with the right hand wheels of such vehicle parallel with and within twelve [12] inches of the right hand curb." (Acts 1939, ch. 48, § 109, p. 289.)
The appellant takes the position that by reason of the fact that its bus was a common carrier, it is *169
excused from complying with the provisions of this 1-3. section. The act itself creates no exemption, and the act in its definition of terms defines a bus as a motor vehicle. Sections 47-1802 and 47-1804, Burns' 1940 Replacement. See Stafford v. Consolidated Bus Lines, Inc. (1942),
There is a distinction between parking and stopping a motor vehicle. Webster's New International Dictionary (2d Ed.) defines the term "stop" to mean, "A cessation of motion, 4-6. operation, progress, function, or the like." Parking includes stopping, but stopping does not necessarily result in parking. A leading case on the question of parking has defined the term as follows: *170
". . . The term `parking,' as applied to automobile and automobile traffic, has a well-defined meaning, understood by all automobile drivers to mean not only the voluntary act of leaving a car on the street unattended but also the stopping of a car on the highway though occupied and attended for a length of time inconsistent with the reasonable use of a street, considering the primary purpose for which streets exist. Streets exist primarily for the purpose of travel."
Wonewoc v. Taubert (1930),
The reasonableness of the purpose, place and length of the stopping of the vehicle may determine whether the cessation of motion is a mere stop or a parking. See 5 Am. Jur. § 334, p. 682;2 Andrews v. City of Marion (1943),
In construing § 47-2123, Burns' 1940 Replacement, it is not possible to furnish a mathematical formula for construing the numerous other safety requirements of the Uniform Act 7, 8. Regulating Traffic on Highways, and the effect of this decision must be limited to the section under consideration. Nor is it possible to give an extended discussion of the principles involved in determining whether a violation of a statutory duty is negligence per se, or merely prima facie evidence of negligence. Quite often the cases in the discussion of statutory negligence have failed to distinguish between negligence which results from the breach of the duty, and actionable negligence which involves failure to perform an established duty which proximately causes injury to the plaintiff.3 When the breach of a statutory duty is held to be negligence per se, or negligence as a matter of law, the court holds that the legislature has created an absolute duty, which cannot be escaped by attempting to prove that the breach was in fact done in the exercise of due care. Prest-O-Lite Co. v.Skeel (1914),
The general rule is that a violation of a statute enacted for reasons of safety is negligence per se, or negligence as a matter of law. Rentschler v. Hall (1946),
Under previous statutory provisions prohibiting the operator of a motor vehicle from driving to his left of the center of the highway, it has been held that the violation thereof was prima facie evidence of negligence. Lorber v. Peoples Motor CoachCo. (1929),
Appellee Hill's requested instruction No. 5 correctly instructed the jury that a violation of § 47-2123, Burns' 1940 Replacement, was prima facie negligence. However, the court 13. also gave to the jury appellee Burk's requested instruction No. 6 which in substance stated that if the bus was stopped or parked with its right hand wheels more than twelve inches from the curb, such action constituted negligence. Although this latter instruction would have been error if there were any facts in evidence showing an excuse for non-compliance with the statutory directions as to stopping or parking, no excuse is shown by the evidence in this case. Therefore, under the facts in this appeal stopping the bus in violation of the statute became negligence as a matter of law. The giving of these instructions was not reversible error.
Appellant's objections to appellee Hill's requested instruction No. 3 which was given to the jury were too general to comply with Rule 1-7, and, therefore, failed to present any question 14. for determination upon appeal. Allman v. Malsbury
(1946),
The objections to Hill's requested instruction No. 4 misinterpreted the language and effect of the instruction. The instruction in substance told the jury that the appellee 15. Hill was not an insurer of the safety of pedestrians although he was required *175 by law to exercise reasonable and ordinary care "having in view all the conditions and circumstances existing at the time, and the possible use of other travelers upon the highway, who were also under the duty to exercise reasonable and ordinary care for their own safety." This correctly stated the law, and no fact in controversy was assumed as true by the instruction.
Appellant's requested instructions No. 7 and No. 8 were refused. These instructions sought to withdraw from the consideration by the jury the appellee's contention that 16. the bus failed to give statutory signals of an intention to turn and stop. Appellee's brief fails to answer or avoid these propositions, and we are not cited to any evidence in the record which would justify submitting these issues to the jury. Upon proper request, the trial court should withdraw from the consideration of the jury any issue upon which there is no evidence. Craig, Exrx. v. Citizens Trust Company (1940),
Appellant's requested instruction No. 9 attempted to give an incomplete definition of negligence. Other instructions covered the matter of burden of proof, and refusal to give this 17. instruction was not error.
The appellant contends that the verdict was not sustained by sufficient evidence as to it, on the theory that even if there was negligence in stopping the bus it only created a 18, 19. dangerous condition, which was not a proximate cause of the collision, by reason of the fact that the negligence of the appellee Hill was an intervening cause which relieved it of liability. However, the correct rule under the facts *176
in this appeal has been stated by this court in IndianapolisUnion R. Co. v. Waddington (1907),
". . . The editor of the American State Reports, in the course of a carefully prepared note on the subject of proximate and remote cause says, that the most frequent exception to the rule that a defendant is not, in general, liable for an independent act of negligence by a third person `is to be found in that numerous class of cases in which a person by his negligence produces a dangerous condition of things, which does not become active for mischief until another person has operated upon it by the commission of another negligent act, which might not unreasonably be anticipated to occur. The original act of negligence is then regarded as the proximate cause of the injury which finally results. The principle is, that the first act is regarded as being continuous in its operation up to the time of the second, and therefore, for the purposes of fixing the defendant's liability, the two acts are treated as contemporaneous.' Gilson v. Delaware, etc., Canal Co. (1892), 36 Am. St. 802, 845."
Later in Opple v. Ray (1935),
Judge Lairy, in Cleveland, etc., R. Co. v. Clark
20-23. (1912),
". . . Where there is an intervening, responsible agency, which directly produces the injury, as in this case, the question as to whether the original negligence is to be regarded as the proximate cause of the injury, or only as a condition, or remote cause, is to be determined by ascertaining *177 whether the agency which intervened was of such a character, and the circumstances under which it occurred were such, that it might have been reasonably expected that such agency or a similar one would intervene in such a way as to be likely to produce an injury similar to the one actually caused. If, under the circumstances, the intervention of such an agency in the manner stated might reasonably have been expected in the usual course of events and according to common experience, then the chain of causation, extending from the original, wrongful act to the injury, is not broken by the independent, intervening agency, and the original wrongful act will be treated as a proximate cause."
These tests are in accord with the statement in 2 Restatement,Torts, p. 1184, § 439, as follows:
"If the effects of the actor's negligent conduct actively and continuously operate to bring about harm to another, the fact that the active and substantially simultaneous operation of the effects of a third person's innocent, tortious or criminal act is also a substantial factor in bringing about the harm does not protect the actor from liability.
". . .
"b. If the harm is brought about by the substantially simultaneous and active operation of the effects of both the actor's negligent conduct and of an act of a third person which is wrongful towards the other who is harmed, the conduct of each is a cause of the harm, and both the actor and the third person are liable."
See also 45 C.J. § 485, pp. 920, 921, 922, 923. We cannot say that the jury would not have the right to draw the inference that it was reasonably foreseeable that stopping the bus at an angle in violation of the statute might be a cause of a collision with another car approaching from the rear, even though negligently operated. The reasoning in Leveillee v. Wright (1938),
". . . It was not necessary that the defendant should have foreseen the precise manner in which the accident might result. Hill v. Winsor,
The negligence of the operator of a motor vehicle in stopping or parking his car may be a proximate cause of injury even though the negligence of the operator of another motor vehicle is an active force in contributing to the final result. Winder Son,Inc. v. Blaine (1940),
The verdict was sustained by sufficient evidence and was not contrary to law. There was ample evidence to sustain the damages awarded by the jury. For the errors in refusing appellant's requested instructions No. 7 and No. 8, the judgment is reversed.
Starr, J. and Young, J., concur in the result.
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