Elder v. Rutledge, No. 27389.

• Docket Nº: No. 27389.
• Citation: 27 N.E.2d 358, 217 Ind. 459
• Case Date: May 29, 1940
• Court: Supreme Court of Indiana

217 Ind. 459
27 N.E.2d 358

ELDER
v.
RUTLEDGE.

No. 27389.

Supreme Court of Indiana.

May 29, 1940.

Appeal from Hendricks Circuit Court; Horace L. Hanna, Judge.

Action by Gertrude Rutledge, administratrix of the estate of Bert C. Rutledge, deceased, against Bowman Elder, receiver of the Indiana Railroad, for the death of deceased, who was struck by defendant's interurban car. From a judgment for the plaintiff, the defendant appeals. Transferred from the Appellate Court, March 8, 1940, under section 4-209, Burns' Ann.St.1933.

Affirmed.

[27 N.E.2d 359]

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

[27 N.E.2d 360]

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...