Terre Haute, I.&E. Traction Co. v. Stevenson
| Decision Date | 27 June 1919 |
| Docket Number | No. 23307.,23307. |
| Court | Indiana Supreme Court |
| Parties | TERRE HAUTE, I. & E. TRACTION CO. v. STEVENSON. |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Vermillion County; Barton S. Aikman, Judge.
Action by Emma L. Stevenson against the Terre Haute, Indianapolis & Eastern Traction Company. Judgment for plaintiff, and defendant appeals. Affirmed.McNutt, Wallace & Sanders, of Terre Haute, Conley & Conley, of Newport, and W. H. Latta, of Indianapolis, for appellant.
James E. Piety and John O. Piety, both of Indianapolis, H. B. Aikman, of Newport, and Wm. F. Elliott, of Indianapolis, for appellee.
This cause was transferred to the Supreme Court under Acts 1901, p. 590. Appellee was injured by a collision at a private crossing between appellant”s interurban car and a buggy in which appellee and her daughter were riding.
The complaint, in substance, alleges that a public highway near the point in question runs parallel to the interurban track of appellant, and upon the other side of the track from the plaintiff's home; that said crossing is a part of the private drive leading from said highway over the track to her home.
To avoid a judgment upon a verdict for plaintiff appellant relies upon allegations of error in overruling its demurrer to the complaint; and overruling its motion for a new trial.
By a fair construction it appears from the allegations of the complaint that as the vehicle turned into said private approach to said track the plaintiff did not look for the car, nor did her daughter, who was driving. It is not alleged that there were obstructions preventing them from seeing the car. It is not alleged that they listened for a car, nor that there was anything to prevent them from hearing had they listened. It is alleged indirectly that neither of them knew of the car's approach, and that in such ignorance they continued to approach, and drove upon the track.
[1] The fact alleged that the buggy top was up and the back curtain thereof down does not excuse those in the buggy for not looking. It rather emphasizes the need of their looking. So considered, the complaint shows contributory negligence, and is therefor insufficient, unless further allegations show that this contributory negligence does not bar recovery.
[2] An effort to show that such contributory negligence does not bar a recovery is found in further allegations to the effect that, when more than 500 feet from this private crossing, the motorman had a clear and unobstructed view of the horse and buggy, and saw it turn from the highway into said private drive at about 60 feet from said private crossing, and knew it was approaching said crossing to go over the same, and he continued to have such unobstructed view until the collision occurred; that the motorman knew that the buggy top was up and the back curtain down, and knew that neither plaintiff nor her daughter knew of the approach of the car, but knew that they were not aware of their perilous situation; that the motorman, so knowing, could have stopped said car within a distance of 100 feet before reaching said crossing, but the motorman, notwithstanding said knowledge, wrongfully, carelessly, and negligently failed to stop the car or check the speed, and wrongfully, carelessly, and negligently ran said car toward and over said crossing without sounding its gong or whistle, or giving any warning of any kind, and so ran said car at from 35 to 45 miles per hour against said horse and buggy; that, if the speed of the car had been checked, plaintiff could have crossed said track in safety, or a warning given to plaintiff would have caused her to stop the horse before reaching the crossing.
These allegations show a clear chance in defendant to have avoided collision after discovery of the peril, which is sufficiently alleged. The alleged discovery by defendant of such chance, and the alleged failure to use due care after such discovery, show a cause of action, notwithstanding plaintiff's admitted negligence.
Appellant asserts that, as the complaint shows that the contributory negligence of plaintiff continued to the time of the collision, and further shows that the negligence of plaintiff was concurrent with the alleged negligence of defendant, the doctrine of last clear chance does not apply.
[3][4] The traveler's peril known to the motorman creates a special duty to take advantage of his chance, if he have a chance. This duty to avoid a collision continues so long as the peril continues. When a traveler is in a perilous situation resulting from his own negligence, and the peril is known to the motorman in time to clearly afford an opportunity to avoid injuring the one in peril, his duty to use the chance arises and continues while the peril lasts, whether the negligence of the traveler continues or is concurrent, or whether the traveler becomes duly, though ineffectively, diligent. Neither concurrence nor continuance of the traveler's negligence alone is a defense when the motorman has a last clear chance to avoid the injury by due diligence after the discovery of the peril. Such continuance of the negligence of the traveler would be a defense if the motorman did not know of the peril thereby created, though the motorman was at the time negligent in not knowing. No special duty to use due care in favor of a particular party arises without actual notice of the particular party's peril. A general duty exists, in the absence of such actual knowledge, to use due care for the protection generally of parties who may or may not be in danger at crossings, but are not known to be in danger, and contributory negligence is a defense when this general, and not a specific, duty of the motorman is violated.
We are aware that in Wabash Railway Co. v. Tippecanoe, etc., Co., 178 Ind. 113, 98 N. E. 64, 38 L. R. A. (N. S.) 1167, it is said that concurrent negligence of the injured prevents the application of the doctrine of last clear chance. While in the case referred to the injured party claimed exemption from the consequences of his own negligence by asserting that the defendant had a clear chance to save him, the facts disclose no such chance; they tend only to show negligence on the part of the defendant in not knowing of the peril of the plaintiff, and it was the absence of knowledge in said cause, and not concurrent negligence, that prevented the application of the doctrine of last clear chance.
There are some expressions in the opinion in Indianapolis Traction, etc., Co. v. Croly, 54 Ind. App. 566, 96 N. E. 973, 98 N. E. 1091, to the effect that, if the motorman, in the exercise of due care, should have known of plaintiff's peril, there was a liability, though the injured was also negligent. We do not believe, however, that such expressions control the real meaning and effect of such opinion. The opinion clearly defines the special duty arising from knowledge, and separates a case wherein knowledge exists from a case wherein only the general duty, which is also clearly defined, to the public about and upon the highway, is involved.
The Appellate Court, in Union Traction Co. v. Bowen, 57 Ind. App. 661, 103 N. E. 1096 (), emphasizes the distinction.
The decisions of this and the Appellate Court requiring knowledge may be found in the following: Evans v. Adams Express Co., 122 Ind. 362, at page 366, 23 N. E. 1039, 7 L. R. A. 678; C. I., St. L. & C. Ry. Co. v. Long, 112 Ind. 166, 13 N. E. 659;Indianapolis, Peru, etc., Co. v. Pitzer, 109 Ind. 179, 6 N. E. 310, 10 N. E. 70, 58 Am. Rep. 387;Wright v. Brown, 4 Ind. 95, 58 Am. Dec. 622;Indianapolis Street Railway Co. v. Bolin, 39 Ind. App. 169, 78 N. E. 210; So. Ind. Railway Co. v. Fine, 163 Ind. 618, 72 N. E. 589;Indianapolis Traction, etc., Co. v. Smith, 38 Ind. App. 160, 77 N. E. 1140;Indianapolis Street Railway Co. v. Marschke, 166 Ind. 490, 77 N. E. 945;L. E. & W. Ry. Co. v. Juday, 19 Ind. App. 436, 49 N. E. 843;Dull v. Cleveland, etc., Co., 21 Ind. App. 571, 52 N. E. 1013;Elwood Street Ry. Co. v. Ross, 26 Ind. App. 258, 58 N. E. 535;Citizens' Street Railway Co. v. Damm, 25 Ind. App. 511, 58 N. E. 564;Hammond, etc., Co. v. Eads, 32 Ind. App. 249, 69 N. E. 555;Citizens' Street Ry. Co. v. Lowe, 12 Ind. App. 47, 39 N. E. 165;Muncie Street Ry. Co. v. Maynard, 5 Ind. App. 372, 32 N. E. 343; Krenzer v. Pittsburgh, etc., Ry. Co., 151 Ind. 587, 43 N. E. 649, 52 N. E. 220, 68 Am. St. Rep. 252, cited in 8 Am. St. Rep. 629, note; Wright v. Gaff, 6 Ind. 416;Indianapolis v. Wright, 22 Ind. 376;Summit Coal Co. v. Shaw, 16 Ind. App. 9, 44 N. E. 676.
The foregoing decisions overcome the following to the contrary, wherein the latter call for the application of the rule: Indianapolis Street Railway Co. v. Schmidt, 35 Ind. App. 202, 71 N. E. 663, 72 N. E. 478;Indianapolis Street Railway Co. v. Seerley, 35 Ind. App. 467, 72 N. E. 169, 1034.
The last clear chance contemplates a peril which the motorman knowing can avoid by due care. To hold that his failure to use due care after learning, and thus having an...
To continue reading
Request your trial