32 Ind. App. 297 | Ind. Ct. App. | 1903
Lead Opinion
Appellant brought this action against appellee to recover damages for personal injuries alleged to have been occasioned by appellee’s negligence. The complaint consists of two paragraphs. The first charges negligence, the second, wilfullness upon the part of appellee’s servants. The jury returned a verdict in favor of appellant upon the first paragraph, assessing his damages at $700. With the general verdict answers to interrogatories were returned. Upon motion the court rendered judgment in favor^ of appellee on these answers, notwithstanding the general verdict, and judgment against appellant for costs. The assignment of errors questions these rulings. The first paragraph avers that appellant was, at the time he received the injury complained of, riding a bicycle on Illinois street, in the city of Indianapolis, when he was run into by one of appellee’s electric cars. No question is presented on the complaint, and a further statement of its averments is unnecessary.
In sustaining appellee’s motion for judgment, the trial court decided that there was an irreconcilable conflict between the general verdict and the answers to interrogatories. The answers show that the plaintiff1 was struck by one of defendant’s electric cars, and thrown to.the pavement, while riding a bicycle along the outside and near to the track of the defendant company on North Illinois street, near Market street, in Indianapolis. The motorman in charge of said car saw the plaintiff near to the said track on which said car was running in time to have stopped said car before overtaking plaintiff, but made no effort to stop it. No alarm or warning of the approach of said car just prior to the collision was given. Pláintiff did not know that said car was approaching him before it struck him. The car was going south, and the plaintiff was also going south when he was struck. Said motorman had reason to believe, after he saw plaintiff on his bicycle near the outer rail of said,car track, and before the collision, that the car
At the time of his accident plaintiff was a man thirty years of age, fully possessed of the faculties of hearing and seeing, and having ordinary mental attainments, judgment, and physical strength. He was familiar with Illinois street at the place of his accident, and the location of car tracks therein, and the manner in, and the frequency with which cars were operated thereon. At said time there were three separate car lines, the cars of which used the tracks on said Illinois street for at least one square in both directions from Market street; and there were cars passing along the tracks at that place very frequently, and at irregular intervals. The plaintiff had been riding along by
We have given the facts specially found. Upon them it does not seem necessary to comment at any length. They foreclose discussion as to the contributory negligence of the appellant. Ilis conduct showed a singular indifference to his own safety. 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 cite no authorities. The general verdict finds that he was free from contributory negligence. The facts show affirmatively that he did not exercise ordinary care. The conflict was irreconcilable, and the court properly rendered judgment in favor of appellee.
Judgment affirmed.
Rehearing
On Petition.for Rehearing.
The rule is universal, in cases in which the injured party seeks to recover damages for personal injuries occasioned by the negligence of another, that the complaining party can not recover if it affirmatively appears that he was guilty of contributory negligence. He must show some care to avoid the injury. He must, at least, use his nautral senses. The traveler must not only do all that an ordinarily prudent man would do under like circumstances, but all that the law declares that an ordinarily prudent person should do. The law measures the duty. A prudent man may do what the law forbids, or he
In numerous cases it has been held that the plaintiff’s conduct is not contributory negligence, if, notwithstanding his negligence, the injury could have been avoided by the use of ordinary care by the defendant. That rule prevails when the plaintiff is in a position of threatened contact with some agency under the. control of the defendant, when the plaintiff can not, and the defendant can, prevent the injury. It does not apply where both parties are contemporaneously and actively in fault, and by their mutual carelessness an injury ensues to one or both of them. Everett v. Los Angeles, etc., R. Co., 115 Cal. 105, 115, 16 Pac. 889, 34 L. R. A. 350. The rule does not apply, where, as in the case before us, the negligence of the party injured continues up to the moment of the injury, and was a contributing cause thereof. Appellant was not riding in a noisy or unwieldy vehicle drawn by horses, but on a swift and noiseless bicycle, susceptible, by slight pressure of the hand, of being instantly turned aside so as to avoid contact with the car. Had he looked or listened he would have known of its approach, and could have put himself out of danger up to the instant of his injury.
The petition for rehearing is overruled.
Robinson, O. J., Wiley and Henley, JJ., concur. Roby and Black, JJ., dissent.
Dissenting Opinion
Action by appellant against appellee for personal injuries alleged to have been occasioned by appellee’s negligence. General verdict for $700 for appellant upon the first paragraph of complaint. With the general verdict the jury returned answers to interrogatories. Appellee’s -motion for judgment upon the answers to interrogatories notwithstanding the general verdict sustained, and exception. Judgment for appellee. Error is assigned that the court erred in sustaining the motion for judgment upon the answers to interrogatories notwithstanding the general verdict. •
The material averments of the paragraph are, in substance, that, at the time of the alleged injury, appellee maintained and operated a double-track street railway line upon Illinois street, in Indianapolis; that appellant was traveling along said street on a bicycle, going south, riding on the outside of the west track near the outer rail; that appellee’s ear was also traveling south behind appellant, at the time of the collision; that appellant had been in full view of the motorman in charge of said car for some time prior to the infliction of the injuries, and had been riding in. a direct south line near said outer rail for many rods in full view of the motorman; that notwithstanding said facts the motorman negligently and without regard to appellant’s rights ran the car at great speed during all said time and distance without giving appellant any warning of the ear’s approach until it struck him; “that said motorman could easily have warned plaintiff of the approach of said car by sounding his gong, or by giving other alarms, so as to have prevented said collision, and could also have checked and slackened the speed of said car after the danger of collision became apparent to him, and could have avoided the infliction of said injuries; but plaintiff avers that said motorman did not give any alarm whatever, and did not check or
The answers to interrogatories show, in substance, the following facts: On the day appellant was injured, Illinois street was about sixty feet wide from curb to curb, extending north and south from Market street in a straight line for many squares. The entire roadway of said street was paved with asphalt from curb to curb, and open and in use for general travel. In said street there were two street railway tracks laid even with the surface of the street, each about four feet eight and one-half inches from rail to rail, and so placed as to be equally distant from the center line of the street, and about five feet apart. The cars going south on Illinois street use the west track, and those going north the east track, and all of said cars projected over the rails of the track upon which they ran about ten or twelve inches on each side. At the time of the accident plaintiff was a man thirty years of age, fully possessed of the faculties of hearing and seeing, and having ordinary mental attainments, judgment, and physical strength. lie was familiar with Illinois street at the place of the accident, and the location of the car tracks therein, and the manner and frequency-with which cars were operated thereon. At the time there were three separate car lines, the cars of which used the tracks on Illinois street for at least one square in both directions from Market street, and there were cars passing along the tracks at that place very frequently and at irregular intervals. The plaintiff had been riding along by the west rail of the west track about three hundred feet, and so close to it (about twelve or fifteen inches) that a car could not pass on that track without striking him. TIis left shoulder was eight or ten inches from the west rail. During all the time he was in full control of his bicycle, and in full possession of all his faculties and physical powers. While he rode beside the street car track he was riding at a speed of four or five miles an hour, and the car
The effect of the general verdict is to establish the facts averred in the complaint. It must therefore be taken as true that the motorman could have checked and slackened the speed of the car after the danger of collision became apparent to him, and could have avoided the infliction of said injuries, and that he did not give any alarm whatever, and did not check or slacken the speed of his car after appellant’s danger became apparent to him. The answers to interrogatories upon the points indicated are in accord with the general verdict.
In the case of Bedell v. Detroit, etc., Railway (Mich.), 92 N. W. 349, decided by the supreme court of Michigan,
“If the'motorman, when he saw appellant on the track, had reason to believe that he was unconscious of the danger or unable to avoid it, it was his duty to use every reasonable effort to stop the car and arouse the attention of appellant.” DeLon v. Kokomo City St. R. Co., 22 Ind. App. 377; Goldrick v. Union R. Co., 20 R. I. 128, 37 Atl. 635.
Judge Mitchell, in that accurate form of expression, of which he was master, states the law applicable to this case as follows: “I\(e quite agree that if the driver of the express wagon saw the appellant standing in the street, it was his duty to turn out and not drive his wagon upon him, and if the facts presented a ease in which it appeared that the driver, after seeing the appellant, had any reasonable ground to apprehend that he was not aware of the approaching wagon, and was unconscious of the danger that was imminent, a recovery would have been justified notwithstanding the antecedent negligence of the appellant.” Evans v. Adams Express Co., 122 Ind. 362, 366, 7 L. R. A.
It can not be held, as a matter of law, that a person traveling upon a street along which, a street car track is laid is bound constantly to look backward when driving upon or in close proximity to such track. He has a right to assume, and to act upon the assumption, that warning will bo given by those in charge of the approaching car behind him, and that the motorman will not knowingly or negligently run him down. Rooks v. Hauston, etc., R. Co., 41 N. Y. Supp. 824; Tunison v. Weadock, supra; Montgomery v. Lansing, etc., R. Co., supra; Rouse v. Detroit Electric Railway, 128 Mich. 149, 87 N. W. 68; Stringer v. Frost, 116 Ind. 477, 9 Am. St. 875; Scofield v. Myers, 27 Ind. App. 375.
The principles governing the conduct of persons using public highways are not affected by the character of the vehicle or the name of the individual. They are no different when invoked to govern the conduct of persons operating street cars, automobiles, and bicycles than when applied to the regulation of those otherwise using the street. The idea that appellant was guilty of negligence in riding a bicycle upon the city street at the side "of or between the car tracks is unfounded. He had exactly the same right to use it that appellee had. The street car does have a preferential right to the use of that portion of the street covered by its tracks arising from the reasonable necessity of its operation; running in a fixed course it can not be turned to the right, and hence the law of the road, applicable to other vehicles, does not apply to it. It can not pass around obstructions on its tracks; hence others using the street must stand aside and permit it passage. This preferential, or, as it is sometimes less accurately called, superior right, does not relieve the
The main opinion does not state accurately the issue made by the complaint. If the conclusion reached is based upon any proposition of law, I have been unable to discover what it is.
A review of the authorities governing the case at bar would unduly extend this opinion. The following decisions by various courts of various states cover the case most thoroughly, and are in accord with the principles heretofore expressed by the courts of Indiana. Vincent v. Norton, etc., St. R. Co., 180 Mass. 104, 61 N. E. 822; Fenner v. Wilkes-Barre, etc., Traction Co., 202 Pa. St. 365, 51 Atl. 1034; Consumers, etc., St. R. Co. v. Pryor (Fla.), 32 South. 797; Manor v. Bay Cities, etc., R. Co., 118 Mich. 1, 76 N. W. 139; Shilling v. Metropolitan St. R. Co., 62 N. Y. Supp. 403; Shea v. Potrero, etc., R. Co., 44 Cal. 414; Mahoney v. San Francisco, etc., R. Co., 110 Cal. 471, 475, 42 Pac. 968; Robinson v. Louisville R. Co., 112 Fed. 484, 50 C. C. A. 357; Tashjian v. Worcester, etc., St. R. Co., 177 Mass. 75, 81, 58 N. E. 281; Tacoma R., etc., Co. v. Hays, 110 Fed. 496, 49 C. C. A. 115; Hall v. Ogden City St. R. Co., 13 Utah 243, 253, 44 Pac. 1046, 57 Am. St. 726; Saunders v. City, etc., R. Co., 99 Tenn. 130, 134, 41 S. W. 1031; Citizens Rapid Transit Co. v. Scigrist, 96 Tenn. 119, 33 S. W. 920; Woodland v. North Jersey St. R. Co., 66 N. J. L. 455, 49 Atl. 479; Shea v. St. Paul City R. Co., 50 Minn. 395, 52 N. W. 902; Laethem v. Ft. Wayne, etc., R. Co., 100 Mich. 297, 58 N. W. 996; Citizens St. Railway v. Steen, 42 Ark. 321; Shaw v. Salt Lake