40 Ind. App. 381 | Ind. Ct. App. | 1907
This was an action brought by appellant against the appellee for damages for personal injuries sustained by the appellant by being struck by one of the appellee’s interurban cars on Washington street, in the city of Marion. The complaint is in four paragraphs. The first paragraph is a complaint for damages for wilful injury. The second paragraph is for damages on account of the negligence of appellee in running its car at a high rate of speed, and omitting, while approaching the crossing where said accident occurred, to give proper signals, by reason of which negligence appellant was injured. The third paragraph is for damages on the ground of negligence, measured by a different standard than by the ordinary rules, by reason of the provisions of appellee’s franchise and the ordinances of said city. The fourth paragraph is for damages on the grounds that appellee was a mere trespasser on the streets of said city, and therefore was a danger not to be apprehended by appellant, and that, being a trespasser and having no rights in the streets, it was its absolute duty to avoid injuring any person rightfully on said streets, in such case the doctrine of contributory negligence not applying. Issues were joined on these several paragraphs, the cause tried by jury, and a general verdict returned for appellees, together with answers to a number of interrogatories. Motion was made by appellee for judgment on the verdict. Appellant filed his motion for a new trial, which was overruled, and judgment rendered upon the verdict in favor of appellee. The errors relied upon for reversal are the giving of certain instructions at request of appellee, and the refusal to give other instructions asked by appellant.
The facts disclosed by the record, in brief, are as follows: Appellant was a man seventy-one years of age. His home
The evidence clearly shows that it was going at a very high rate of speed, variously estimated from ten to twenty-five miles an hour, and, as some of the witnesses testified, hurling paper and leaves up over the top of the car. The jury found by its answer to an interrogatory that it was running at a speed from ten to twelve miles an hour. It was about one-half an hour behind its schedule time. Appellant knew that no interurban car was due to pass that crossing at the time he endeavored to cross.
The fourteenth instruction was as follows: “Double tracks for electric street railways laid upon a public street of a populous city, where other public streets cross said tracks, are places of danger, and especially so where electric cars are running back and forth on said tracks every few minutes, and at such places the rule of law is that persons attempting or making an effort to cross the railroad tracks at such points are bound to look and listen, and it is a rule of law that at such places of danger every person is bound to
“(18) Where a motorman or conductor, operating an electric car on a' street-ear track on a public street in a city, observes a pedestrian in the street, or walking along the side of the track in front of said ear, or one who is attempting to cross such track when there is no obstruction in the street, and there is nothing to prevent such person, by the proper use of his hearing and sight, from discovering such approaching car, such motorman has a right to presume that such person so walking in said street will keep a safe distance away from said track,.and thus avoid any injury.”
These instructions, as abstract propositons of law, might in some eases be correct; but where, as here, a motorman running his electric car at a high rate of speed in a populous part of a. city, sees an old man 140 feet away, crossing the street diagonally, with his back towards the approaching car, his attention turned therefrom, with cars on another track passing in front of him, and with nothing to indicate to the motorman that he is aware of the approaching danger, it is
In the case last cited the court say, on page 172: “Where those having the control and management of trains become aware of the presence of a person on the track, and have reason to believe from his appearance or from the manner in which he is occupied that he is either unconscious of, or unable to avoid, the danger of contact with the cars, it becomes their duty to use every reasonable effort to stop the train and arouse the attention of the person on the track. Unless those controlling the train have reasonable assurance that a person who is seen at work on the track is aware of the approach of the train, and that he is in a condition to apprehend and avoid the danger, they are guilty of negligence if they fail to give warning and stop the train. Indianapolis, etc., R. Co. v. Pitzer [1887], 109 Ind. 179, 58 Am. Rep. 387, and cases cited.” These instructions were inapplicable to the facts and misleading to the jury, and it was error to give them.
Other questions are raised as to other instructions given and refused; but, since the cause must be reversed, we do not deem it necessary to consider them.
Judgment reversed.