Chicago & Calumet Dist. Transit Co. v. Vidinghoff, 18197

• Decision Date: 07 February 1952
• Docket Number: No. 18197,18197
• Citation: 103 N.E.2d 460,122 Ind.App. 395
• Parties: CHICAGO & CALUMET DIST. TRANSIT CO., Inc. v. VIDINGHOFF.
• Court: Indiana Appellate Court

Page 460

103 N.E.2d 460

122 Ind.App. 395

CHICAGO & CALUMET DIST. TRANSIT CO., Inc. v. VIDINGHOFF.

No. 18197.

Appellate Court of Indiana, in Banc.

Feb. 7, 1952.

Owen W. Crumpacker, and Crumpacker & Friedrich, all of Hammond, for appellant.

Galvin, Galvin & Leeney, Hammond, for appellee.

ROYSE, Judge.

Appellee brought this action against appellant for damages for personal injuries arising out of an accident when she was struck by a bus operated by appellant in the City of Hammond. The material allegations of negligence upon which the cause was submitted to the jury were:

'In failing to maintain a lookout in front of and in the path traveled by the bus which struck this plaintiff,'

'In failing to sound a horn or give any other warning of the approach of the bus which struck this plaintiff,'

'In failing to bring the bus which struck this plaintiff to a stop before the same came into contact with plaintiff's body.'

Trial to a jury resulted in a verdict for $25,000 in favor of appellee. Judgment accordingly.

The error assigned here is the overruling of appellant's motion for a new trial. The specifications of that motion are, that the verdict is not sustained by sufficient evidence; is contrary to law; error of law occurring at the trial in that the court denied the motion of appellant for a directed verdict at the conclusion of all the evidence; and misconduct of the prevailing party through her counsel.

The first three specifications present substantially the same question and require a consideration of the evidence. While there was a sharp conflict in the evidence, under the well settled rule we proceed to a consideration of the facts most favorable to appellee.

In the city of Hammond, State Street runs in a generally easterly and westerly direction. It is intersected by Oakley Avenue which runs in a general northerly and southerly direction. State Street is approximately 40 feet wide from curb to curb west of Oakley Avenue, and is 58 1/2 feet wide east of Oakley Avenue. The offset is on the south side of State Street. There is a diagonal cross walk running in a southeasterly direction from the southwest corner to the southeast corner. This intersection is in the business district of Hammond. There is an automatic traffic signal on the northeast and southwest corners of this intersection. At a point approximately ten feet east of the intersection there is a loading zone which runs 77.7 feet east on the south side of State Street where passengers board and depart from buses of appellant. No parking is permitted in this zone. It will accommodate two buses of the size used and operated by appellant. Four bus routes used this zone. At the time hereinafter referred to there were a number of people waiting in this zone.

Shortly after 5 p. m. on the evening of September 16, 1947 the appellee who worked for the Minas Department Store, which is located about a half block west of Oakley Avenue on State Street left her place of employment and proceeded east on State Street across the aforementioned intersection. It was a bright clear day. As she reached the southeast corner of the intersection she observed her bus quite a ways east of her parked at the east end of the loading zone. It was parked some distance north of the curb. She then walked to the curb to a point about midway between the west and east ends of this zone. She looked up and down to see if anything was coming. Everything was still. She stepped from the curb into the street and walked east toward the bus. She had walked only a few feet when she was struck in the back by one of appellant's buses which was entering the loading zone from the west. The bus which struck her had stopped for the traffic signal at the west end of the intersection. When the signal turned green the bus proceeded slowly through the intersection at an angle toward the loading zone. The bus stopped in a space of inches after it struck her. The driver of the bus said he did not know whether he sounded his horn. There was other evidence that he did not sound his horn and several witnesses said they did not hear it. There was evidence that after the impact appellee fell in front of the right front wheel of the bus. The driver of the bus said he saw appellee when she was in the cross walk. He said his attention was drawn to her because she was running in the cross walk. He did not see her reach the corner but did see her again about fifteen feet east of the intersection, at which time she was about two or three feet north of the south curb going northeast. He further said she was about three or four feet southeast of the most easterly part of his bus. At this time he said his bus was moving at a speed of one to two miles per hour. It is undisputed that appellee was seriously and permanently injured.

Appellant first contends upon this record there is no substantial evidence of probative value to sustain either of the charges of negligence submitted to the jury. Second, it states appellee was guilty of contributory negligence as a matter of law because she stepped off of the sidewalk into the street.

Upon the facts hereinbefore set out we believe reasonable men might have differed as to whether the failure of appellant to sound his horn or give other warning of the approach of its bus toward appellee, whose back was to said bus, was negligent. The same is true of the failure to bring the bus to a stop. It is to be remembered the bus driver testified after he crossed the intersection he was driving with his foot on the brake and could bring the bus to a stop in less than a foot. In fact he did just this after the accident. Appellee said when she stepped into the street everything was still. After the driver had cleared the intersection and immediately before the accident the bus driver saw her moving northeastward and she was then about four feet southeast of the most easterly or front part of the bus, that is, her back was toward the approaching bus.

Appellant further contends under the record herein appellee was guilty of contributory negligence as a matter of law. It asserts it is shown by the evidence she violated the provisions of § 47-2035(b), Burns' 1951 Supp., which provides as follows: 'Where sidewalks are provided it shall be unlawful for any pedestrian to walk along and upon an adjacent roadway'.

Appellee contends this subsection is not applicable to this case because there was no contention the accident occurred at a cross walk. She asserts the case was not tried on this theory and in the trial it was the contention of appellant that she darted suddenly from the sidewalk into the side of the bus. She significantly points out that no instruction on this subject was tendered or requested by appellant.

Conceding without deciding that appellee, by stepping into the street, violated the provisions of the statute and she was prima faciely guilty of contributory negligence, the record herein does not lead inescapably to the conclusion that such conduct on her part was the proximate cause of her injury. In our opinion the question of whether appellee was guilty of contributory negligence which was the proximate cause of her injury was properly submitted to the jury. They decided against appellant's contention and we may not disturb their verdict. Shown v. Taylor, 1950, 120 Ind.App. 154, 160, 88 N.E.2d 783 (Transfer denied). Therefore, we hold there was sufficient evidence to sustain the verdict of the jury, it was not contrary to law, and the court did not err in refusing to direct a verdict for appellant at the close of all the evidence.

Appellant next contends it was prejudiced by the misconduct of appellee's counsel during the course of the trial. Appellant asked the court to instruct the jury to disregard the alleged misconduct. The trial court sustained this motion and did instruct the jury to disregard such conduct. Appellant did not then move the court to withdraw submission of the cause from the jury. Therefore, no question is presented here on that matter. Gamble v. Lewis, 1949, 227 Ind. 455, 466, 467, 85 N.E.2d 629, and authorities there cited.

Finally there is no merit, and appellant has so conceded in the oral argument of this case, to its supplemental motion for a new trial.

Judgment affirmed.

CRUMPACKER, J., not participating.

ACHOR, J., dissents with opinion.

ACHOR, Judge (dissenting).

The statement in the majority opinion of the court as to the pleadings and physical facts surrounding the place of the accident is correct. However, I do not concur with the majority opinion as to the evidence regarding the conduct of the parties, nor the legal consequences of their conduct.

All the acts of negligence charged in plaintiff's complaint must, of necessity, be predicated upon a fact that appellant's bus driver saw, or in the exercise of reasonable care should have seen, the appellee in sufficient time to have (1) sounded his horn, or (2) stopped the bus and thus avoided the collision.

According to the uncontradicted evidence of numerous witnesses, the collision occurred from two to four feet in the street north of the curb. All the witnesses, except one, testified that at this point appellee 'stepped,' 'hurried,' 'ran' two or three steps north or northeast off the curb 'in the vicinity of the fruit store or shoe store' (which were toward the west end of the loading zone).

It is contended that from this point appellant then walked to a point about midway between the west and east ends of the loading zone, where she was struck from the rear. There is no direct evidence to this effect, and I can find no evidence upon which reasonable men could support such an inference.

According to the uncontradicted evidence, after being struck appellee fell in the street near the bus at a point between the fruit store and the shoe store. All the witnesses, except appellee and a Genevieve DeCamp, testified that the collision occurred at that point immediately...