Citizens Street Railroad Co. v. Hamer
| Decision Date | 31 January 1902 |
| Docket Number | 3,799 |
| Citation | 62 N.E. 658,29 Ind.App. 426 |
| Parties | CITIZENS STREET RAILROAD COMPANY v. RAYMOND J. HAMER, BY FLORA HAMER, HIS NEXT FRIEND |
| Court | Indiana Appellate Court |
Transfer denied June 24, 1902, Reported at: 29 Ind.App. 426 at 438.
From Marion Superior Court; J. M. Leathers, Judge.
Action by Raymond J. Hamer, by next friend, against the Citizens Street Railroad Company for damages for personal injuries. From a judgment for plaintiff, defendant appeals.
Affirmed.
F Winter, W. H. H. Miller, J. B. Elam, J. W. Fesler, S.D Miller and W. H. Latta, for appellant.
F. W. Ballenger, J. E. McCullough, F. J. Reinhard and J. O. Spahr, for appellee.
The appellee, the plaintiff, who brought this suit by next friend to recover damages for personal injuries, was seven years, one month, and four days old at the time his injuries were received. He was of average intelligence, size, and vigor, with good sight and hearing. He had occasion to cross a street in Indianapolis known as Virginia avenue. He was not in the habit of crossing at that point, but had done so a number of times in company with older boys, and had been told that it was a dangerous place. The appellant has a double-track railway along the street. The west track was used by cars going south, and the east track by cars going north. The viaduct was immediately south, and the grade was descending to the north. The tracks were separated over the viaduct by a low railing, and were farther apart than is usual. The appellee went across the railway from the west side of the street to the first track, fifteen feet four inches, across the track four feet nine inches, across the intervening space ten feet six inches, and upon the second track, where he was struck by a north bound car. The motorman saw him when the car was five or ten feet distant. He did not make any effort to stop it at that time, and ran about 100 feet north of the point of collision before stopping. It was a clear day, and there was no obstacle to prevent the motorman from seeing appellee when he was 300 feet south, and nothing to prevent appellee from seeing the car at the same distance, if he had looked. A car going at fifteen miles an hour could have stopped in from twenty to twenty-seven and one-half feet. The car in question was moving at the rate of five miles an hour when it struck appellee. His leg was cut off, as shown by marks on the rail, after he had been carried by and under the car a greater part of the 100 feet. The motorman did not sound his gong and did not see the appellee until within five or ten feet of him, being engaged in conversation with an occupant of his car. When the plaintiff started across the street a south bound car was from 80 to 100 feet north of him. The motorman of this car rang the gong loudly and continuously until the accident occurred, and some of the passengers observing the appellee's peril shouted. Appellee either ran or walked rapidly, and looked toward the car where the noise was being made during the entire time occupied by him as aforesaid. It was averred and found that he was confused, and his attention attracted away from the north bound car, and that he thereby failed to discover his danger. This synopsis of facts is sufficient to indicate the legal proposition upon which the decision depends. A demurrer was overruled to the complaint. Trial by jury. Verdict for appellee fixing damages at $ 5,500, with answers to eighty-one interrogatories. Appellant's motion for judgment, notwithstanding the general verdict, was overruled. Judgment on general verdict. Motion for new trial overruled.
It is argued that there was no actionable negligence averred, that the evidence failed to show any such negligence, and that the interrogatories and their answers negative it. This contention can be considered only in the light of the law as to the right of a street railway in the highway and its duty towards other persons thereon. Street railways are held not to create an additional burden upon lands dedicated to highway purposes. Upon the theory that such use of the street is identical in character with its use by other persons and vehicles, compensation to the landowner is denied. Chicago, etc., R. Co. v. Whiting, etc., St. R. Co., 139 Ind. 297, 26 L. R. A. 337, 47 Am. St. 264, 38 N.E. 604; Magee v. Overshiner, 150 Ind. 127, 40 L. R. A. 370, 65 Am. St. 358, 49 N.E. 951. It follows that a street railway company has no superior right in the highway but stands upon equal terms with others lawfully using it. Its duty towards others lawfully using the street is determined by reference to the circumstances of each case. Thompson on Neg., § 1344. The street car has the right of way over that portion of the highway occupied by its track because the character of the vehicle and the condition of its use render such priority reasonable. Other persons using the street are not, however, excluded from using that portion thereof upon which the track is laid. De Lon v. Kokomo City St. R. Co., 22 Ind.App. 377, 53 N.E. 847. "The cars have the right of way in case of meeting vehicles or persons on the track, but each party is bound to exercise such ordinary care, prudence, and precaution to avoid injury as the surrounding circumstances may require." Thompson v. Salt Lake, etc., Co., 16 Utah 281, 40 L. R. A. 172, 67 Am. St. 621, 52 P. 92. The streets are open to the free use of persons of all ages and the railway company is bound to run its cars with due regard to the rights of infirm persons and children of tender years. Citizens' St. R. Co. v. Stoddard, 10 Ind.App. 278, 37 N.E. 723; Government St. R. Co. v. Hanlon, 53 Ala. 70, 81; O'Mara v. Hudson River R. Co., 38 N.Y. 445, 449, 98 Am. Dec. 61; Krenzer v. Pittsburg, etc., R. Co., 151 Ind. 587, 68 Am. St. 252, 43 N.E. 649. The appellant was therefore required to use reasonable care in view of all the circumstances and the same duty rested upon the appellee. Thompson on Neg., § 1378.
Appellee started across the street. His attention was directed to the car coming from the north; the motorman on the car coming from the south might as well have seen and known appellee's danger, and the preoccupation making him unaware of it, as the motorman and the passengers on the opposing car. Had he done so, it was within his power to have checked the speed of his car, or stopped it entirely if necessary, and thereby averted the accident. Whether under all the conditions the motorman did exercise reasonable care in discovering plaintiff's situation, and in his action in regard to it, was a question of fact upon which the verdict of the jury is conclusive. Shenners v. West Side St. R. Co., 78 Wis. 382, 47 N.W. 622; Mason v. Minneapolis St. R. Co., 54 Minn. 216, 55 N.W. 1122; Dahl v. Milwaukee City R. Co., 62 Wis. 652, 22 N.W. 755; Galveston City R. Co. v. Hewitt, 67 Tex. 473, 3 S.W. 705, 60 Am. Rep. 32; Erie City R. Co. v. Schuster, 113 Pa. 412, 6 A. 269, 57 Am. Rep. 471; O'Flaherty v. Union R. Co., 45 Mo. 70, 100 Am. Dec. 343; Ihl v. Forty-Second St. R. Co., 47 N.Y. 317, 7 Am. Rep. 450; Government St. R. Co. v. Hanlon, 53 Ala. 70; Citizens' R. Co. v. Foxley, 107 Pa. 537; Rosenkranz v. Lindell R. Co., 108 Mo. 9, 18 S.W. 890, 32 Am. St. 588; Johnson v. Reading City R. Co., 160 Pa. 647, 28 A. 1001, 40 Am. St. 752; Weissner v. St. Paul City R. Co., 47 Minn. 468, 50 N.W. 606.
Appellant asserts that it was the appellee's duty to keep off the track; that the motorman had a right to assume that he would do so, and therefore was not obliged to check up or stop the car, and not negligent in failing to see appellee inasmuch as if he had seen him the presumption would have still controlled. It cites in the support of this proposition Citizens St. R. Co. v. Carey, 56 Ind. 396. The facts upon which that case was decided were that the driver of a horse-car saw a child standing near the track, where, in the ordinary course of events, no harm would have come to her. There was nothing in the situation which indicated an attempt to cross the street or otherwise to incur danger. The court held that in the absence of some such indication the conduct of the driver in proceeding in a usual and careful manner was not negligent. It was said "that as soon as the driver was aware of her moving toward the track he made every possible effort to stop the car."
The distinction between the two cases is too obvious to require statement. Had the motorman looked toward the appellee he would have seen a seven year old child with face averted hastening toward a point immediately in front of the electric car. Whether there was that, in the situation and appearance of the appellee, indicating an attempt to cross the street and tracks in such manner as to put the motorman on guard to avoid collision, was a question of fact. That fact, having been found by the jury, must be taken as established, if there was evidence supporting the finding. It is only when the verdict is without support that this court may disregard it. The presumption is that a person who sees an approaching car will heed what he sees and step from the track. The rule has been many times expressed and applied to persons on the track of a steam railroad. Cleveland, etc., R. Co v. Klee, 154 Ind. 430, 56 N.E. 234, and authorities cited on p. 434. The presumption in such cases only obtains when there is nothing to indicate the contrary. Cincinnati, etc., R. Co. v. Long, 112 Ind. 166, 174, 13 N.E. 659; Pittsburgh, etc., R. Co. v. Judd, 10 Ind.App. 213, 222, 36 N.E. 775. It applies with much greater force to an adult than to an infant (Wallace v. Suburban R. Co., 26 Ore. 174, 37 P. 477, 25 L....
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Citizens' St. R. Co. v. Hamer
......Leathers, Judge. Action by Raymond J. Hamer, by Flora Hamer, his next friend, against the Citizens' Street Railroad Company. From a judgment in favor of the plaintiff, and from an order denying a new trial, defendant appeals. Affirmed.F. Winter, Miller & ......