191 Ind. 324 | Ind. | 1921
The appellant sued the appellee for personal injuries sustained when he was struck by one of appellant’s interurban freight-cars in Martindale avenue, near Seventeenth street, in the city of Indianapolis. Appellee was riding a motorcycle east on Seventeenth street when he saw a freight-car coming south in Martindale avenue, and turned his motorcycle south into that avenue, but collided with some part of the car near the rear end. Issue was joined upon the complaint and an answer of denial, and the cause was submitted for
Instruction No. 28, given by the court, stated that it was the theory of the second paragraph of appellee’s complaint, among other things, that appellant’s motorman, by the exercise of reasonable care and diligence, could have seen the appellee at all times after the car had reached a point 150 feet north of where appellee was in Seventeenth street, when appellee was twenty-five or thirty feet west of the track, and that appellee was in full view of the motorman while appellee was traveling more than forty feet before the collision, and that appellant, by its employes saw, and by the exercise of reasonable care and diligence could have seen appellee approaching the car track on the crossing when the car was far enough away from the crossing to have stopped it or slowed it down, by the exercise of ordinary care and diligence, and thus to have avoided the collision and resulting injury.
Instruction-No. 29 (our italics) was given as follows:
“If however^ under the circumstances above named, the motorman could not, by the exercise of reasonable
The undisputed evidence, together with that part of the controverted evidence tending to support the allegations of the complaint which was most favorable to the appellee, was as follows:
Martindale avenue extended north and south, and was 100 feet wide between property lines, with a five foot sidewalk next to the west line, a grass plot nineteen and one-half feet wide next to the sidewalk, and a roadway fifty feet wide between curbs; a double track street railway was in the middle of the street, and it was seventeen feet and nine inches from the west rail to the west curb; the avenue was not paved except where Seventeenth street crosses; a line of houses on the west side stood sixteen feet west of the property line; a dead cherry tree stood on the lawn at the northwest corner, and one dead and two living poplar trees stood in the grass plot in front of the first, second and third lots .north; it was six or eight feet to the first limbs of the cherry tree, and twelve feet to the first limbs of the poplar trees; the trees were not bushy, but the branches extended upward at an angle of forty-five degrees. These trees were from twelve to eighteen inches in diameter; Martindale avenue is straight and the houses stand the same distance back for 2,000 feet north; Seventeenth street, fifty feet wide, with a roadway twenty-four feet between curbs, paved with brick, with cement walks five feet wide next to the curbs, extended east and west across Martindale; appellee rode a motorcycle east in Seventeenth street near the south curb at the rate of ten or twelve miles an hour until he was within ten or twelve feet of the west car track, when he looked north and saw a freight-car operated by appellant
We quote the language of a recent decision of this court on the subject of the last clear chance, which is supported by an exhaustive citation of authorities, and which meets with our approval as applied to the facts of the case at bar: “The traveler’s peril known to the
Counsel for the appellee invoke the rule which has been applied when a person was helpless, in a place of danger, where it was the duty of the motorman to keep a lookout ahead, as where a traveler’s foot had become fastened between the planking and the rail at a crossing, or the vehicle in which he was riding had become stalled on the track, at a crossing, so that he was unable to extricate himself, and the motorman would have known of his situation in time to stop and avoid injuring him, if the duty to keep a lookout ahead were performéd. “Under such circumstances, the negligence of the plaintiff is deemed to cease at and after the time he reaches a situation where due care on his part would be unavailing, and the special duty of the defendant to such person immediately arises, and, if negligence on the part of the defendant then intervenes, or, if, after
Counsel for the appellee also invoke the rule which was applied where a street railway had opened a passage through deep snow along its tracks in the middle of the street by throwing the snow out to either side, and the snow was so deep that the way thus opened afforded the only means of passing, and a street car which approached from behind,' without giving any warning, ran down and killed a woman who was walking along the track, although the motorman’s view of her was unobstructed while his car ran a thousand feet, and her back was toward him all that time. The decision of the latter case did not rest upon the doctrine of last clear chance or of antecedent and subsequent negligence, but upon the proposition that the woman had a right to travel in the middle of the street under the circumstances and to rely upon being warned before a street car was run upon her.
Neither does the evidence in the instant case tend to bring it within the rule applicable to antecedent and subsequent negligence, as above recited.' The first house north of Seventeenth street, on the west side of Martindale avenue, was more than fifty-eight feet from the street railway track. Martindale avenue was 100 feet wide and straight, and as free from obstructions to appellee’s view of the approaching car as it was of obstructions to the motorman’s view of him. Appellee as well as the motorman was facing the crossing. He
Neither would an instruction on the doctrine of antecedent and subsequent negligence, as distinguished from the doctrine of the last clear chance, be applicable to the issues joined by an answer of denial to the second paragraph of the complaint, as recited in the other instruction referred to. The second paragraph of the complaint, referred to in the instruction immediately preceding the one complained of, alleged that appellant operated a system of interurban railroads upon certain tracks in Martindale avenue; that said tracks extended north and south in said avenue across Seventeenth street, which runs east-and west; that appellee rode his motorcycle east along Seventeenth street at a speed not exceeding ten or twelve miles an hour, and when forty feet from the car tracks looked north upon Martindale avenue, but that no car was then in sight; that he continued east until within ten or fifteen feet of the crossing, when he saw appellant’s interurban freight car coming rapidly toward him; that he turned south into Martindale avenue as short as he could, but after he had run south twenty feet from the point where he began to turn, the car ran past him at the rate of forty miles an hour, and the rear part of the car struck the motorcycle and thereby caused the injury complained
Neither the complaint nor the evidence made out a case where the motorman might have seen appellee on the track, unable to extricate himself from danger or obviously unconscious of danger, as the car approached. He was not on the track at any time, until his foot was thrust upon the rail under a rear wheel of the car, an instant after the collision occurred. And under the averments of the complaint it does not appear that there was any reason why the motorman, even if he had seen appellee in Seventeenth street thirty feet west of the track, riding east at the rate of ten or twelve miles an hour, should have apprehended that he would not stop, or turn either north or south in Martindale avenue, which, it would appear he could have done with safety, until he was within ten feet of the track. If we accept appellee’s contention that his motorcycle did not skid, and that the rear wheel was struck by the car after the
The many cases cited by counsel where the motorman or engineer had actual knowledge of the situation and danger of a person upon or approaching the track do not tend to support an instruction defining the “last clear chance” as embracing a case where the motorman “could have seen,” but “negligently failed to see” the plaintiff and his peril.
That the motorman and the driver of the motorcycle, both approaching a crossing, might have seen each other if they had looked, while the motorcycle ran a certain distance towards the crossing, imposed upon the motorman no greater duty to look than it imposed upon the driver of. the motorcycle. -And if neither looked, but both were guilty of negligence which contributed to cause the injury, in that both drove heedlessly on until a collision was unavoidable, and the motorman did not look at all, and did not know that the driver of the motorcycle was in danger until he was injured, any efforts which the driver made to stop his motorcycle or to turn aside after he was so close that the speed at which he was riding carried him against the rear end of the car could not give him the rights which might have been accorded to a person who was lying helpless upon the track at the crossing.
The judgment is revérsed, with directions to sustain appellant’s motion for a new trial.