Elder v. Rutledge

• Decision Date: 29 May 1940
• Docket Number: 27389.
• Citation: 27 N.E.2d 358,217 Ind. 459
• Parties: ELDER v. RUTLEDGE.
• Court: Indiana Supreme Court

27 N.E.2d 358

217 Ind. 459

ELDER v. RUTLEDGE.

No. 27389.

Supreme Court of Indiana

May 29, 1940

McHale Arthur & Myers and Herbert J. Patrick, all of Indianapolis, and Edgar M. Blessing, of Danville, for appellant.

Fenton Steers, Beasley & Klee, of Indianapolis, for appellee.

SHAKE Judge.

The appellee, as administratrix of the estate of Bert C Rutledge, recovered a judgment against the appellant for negligence resulting in the death of her decedent. This appeal is from the denial of the appellant's motion for a new trial. The facts are not materially in dispute and the questions presented resolve themselves into one of law. A description of the place where the accident occurred and the circumstances attending it are essential to a presentation of the case.

Ohio Street in the city of Indianapolis runs east and west and intersects Pennsylvania Street at an angle of 90 degrees. Massachusetts Avenue extends northeast from said intersection at an angle of 45 degrees to Ohio Street. Ohio Street and Massachusetts Avenue each carry two parallel car tracks. The south track on Ohio is for the accommodation of east bound care and the southeast track on Massachusetts is for cars proceeding northeasterly on said avenue. Said described tracks are connected by a curved switch in said intersection. There is room for two lines of east bound vehicular traffic between the south track on Ohio Street and the south curb thereof. A traffic lane for the use of pedestrians, approximately 16 feet wide, connects the sidewalk along the west side of Pennsylvania Street north and south of Ohio, and there is a safety zone about six feet wide between the south track on Ohio Street and the vehicle lane extending west from the crosswalk.

The decedent approached the intersection of Ohio Street and Pennsylvania from the north along the sidewalk on the west side of Pennsylvania. A traffic officer was stationed in the intersection. When the decedent reached the curb of Ohio Street the officer was directing traffic north and south on Pennsylvania Street. One of appellant's east bound interurban cars was standing west of the crosswalk. The decedent attempted to cross Ohio Street in front of said interurban. As he passed the car the officer signaled for the traffic to proceed east and west along Ohio Street and the decedent stopped in the safety zone. Two parallel lines of automobile traffic immediately started east along the south side of Ohio Street and over said intersection. A few seconds later the interurban also started. Normally, the south side of the car extended two feet over the south rail. The car was 60 feet in length and as it turned northeasterly into Massachusetts Avenue the back end thereof swung into said safety zone an additional two feet. The decedent could not proceed across Ohio Street because of the moving automobile traffic which he faced, and he was struck on the head by an extending door handle as the rear end of the car swung into said safety zone. The decedent suffered a fractured skull, either from the blow of the moving car or from a resulting fall, from which he died.

The motorman operating the car gave undisputed testimony that when he started forward the way ahead was clear and that he did not see the decedent prior to the accident. Other witnesses said that the space between the east bound vehicles on the south side of Ohio and the southwest corner of the car as it turned northeast into Massachusetts where the decedent was standing when he was struck, was about one foot wide.

The traffic lane for pedestrians across Ohio Street and the safety zone parallel to the south rail of the south track were marked on the pavement, pursuant to a municipal ordinance of the city of Indianapolis, which provided among other things: 'Section 15. Pedestrians' Right of Way: (a) The operator of any vehicle or street car shall yield the right of way to a pedestrian crossing the roadway within any marked crosswalk * * * except at intersections where the movement of traffic is being regulated by public officers * * * but at all places a pedestrian having lawfully started across a street at an intersection shall have the right of way until such pedestrian has reached the opposite side of the street.'

The theory and essential ingredients of actionable negligence are tersely stated in Faris v. Hoberg, 1893, 134 Ind. 269, 274, 275, 33 N.E. 1028, 1029, 39 Am.St.Rep. 261, as follows:

'In every case involving actionable negligence, there are necessarily three elements essential to its existence: (1) The existence of a duty on the part of the defendant to protect the plaintiff from the injury of which he complains; (2) a failure by the defendant to perform that duty; and (3) an injury to the plaintiff from such failure of the defendant.

'When these elements are brought together, they unitedly constitute actionable negligence. The absence of any one of these elements renders a complaint bad, or the evidence insufficient.

'As a question of evidence, the facts are given to the jury, and, if there is no evidence whatever as to one of the three elements, then, as a question of law, the plaintiff has failed, and the court may direct a verdict for the defendant.'

The appellant most earnestly insists that under the facts summarized above there was no duty on the operator of the interurban car to keep a lookout to the side and rear of such car so as to be able to warn pedestrians or other travelers upon the street of the danger from the overhang or outswing of such rear end, and that inasmuch as the motorman did not actually see the decedent and appreciate that he was in a place of imminent peril, the appellant was not shown to be guilty of any negligence. Upon this assumption all the alleged errors are predicated, and the case may be considered without particular reference to the specific assignments by which they are presented to us.

The law applicable to situations akin to the one at bar has been declared by a number of courts of other jurisdictions. Most of these cases have been collected and annotated in 9 N.C.C.A. 678, 17 N.C.C.A. 635, 23 N.C.C.A. 849, and 28 N.C.C.A. 617. The appellant relies principally upon seven cases which we shall review.

Hering v. City of Detroit, 1928, 244 Mich. 293, 296, 297, 221 N.W. 278, 279, was a case where a pedestrian who was standing in a safety zone and facing a moving street car was struck by the outswing of the car as he stooped to pick up some money. In holding the motorman not guilty of negligence, the court stated the general rule to be that: 'The fact that a street car will overhang at the rear end in rounding a curve is of such common knowledge that pedestrians are presumed to know it, and the car operator has no duty to warn them of it. The motorman may assume that pedestrians will not put themselves in the way of the overhang, or, if in a place of danger, will step out when injury threatens. Consequently the motorman is not bound to keep watch of the overhang zone until the rear of a car has cleared it, but is free to discharge his duty of lookout ahead, and to operate his car in the manner generally recognized as careful.' It was then stated that the ordinance establishing the safety zone did not impose any special duties upon the operators of...