Indianapolis St. Ry. Co. v. Bolin

• Decision Date: 07 June 1906
• Docket Number: No. 5,371.,5,371.
• Citation: 39 Ind.App. 169,78 N.E. 210
• Parties: INDIANAPOLIS ST. RY. CO. v. BOLIN.
• Court: Indiana Appellate Court

39 Ind.App. 169

78 N.E. 210

INDIANAPOLIS ST. RY. CO.

v.BOLIN.

No. 5,371.^*

Appellate Court of Indiana.

June 7, 1906.

Appeal from Superior Court, Marion County; Vinson Carter, Judge.

Action by Lewis Bolin against the Indianapolis Street Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

F. Winter and W. H. Latta, for appellant. Elmer E. Stevenson and Edw. H. Knight, for appellee.

ROBY, J.

Action by appellee; verdict and judgment against appellants for $6,000. Their motion for judgment on interrogatories returned by the jury was overruled, as was also their motion for a new trial, and said rulings are assigned as error. An additional assignment challenges the sufficiency of the complaint for the first time, but is not supported by any argument and is therefore waived.

The complaint was in four paragraphs. The jury were instructed to find for the defendant upon the fourth paragraph. The issue upon the remaining ones was formed by a general denial. It is charged in the first paragraph that the Indianapolis Street Railway Company negligently ran one of its cars along Illinois street in the city of Indianapolis at a dangerous and reckless rate of speed, to wit, 20 miles per hour, and while so running at said high and dangerous rate of speed negligently ran its car into and against a horse and buggy driven by appellee, thereby inflicting injuries upon him. In the second paragraph it is charged that the railway company negligently ran one of its cars along said street at a dangerous, unusual, and reckless rate of speed, and while so running, carelessly and negligently ran said car into and against the horse which appellee was driving, and buggy in which he was riding, injuring, etc.; that appellee was traveling on the right side of Illinois street, and that when said car was distant several hundred feet from him “and when it was to him, and would have been to any ordinary person, under similar circumstances in the exercise of ordinary and reasonable care, apparently safe to cross the tracks of said company, he started across the tracks of said company, crossing from the east to the west side of said Illinois street; that after plaintiff had gotten across the east track of said defendant company, Indianapolis Street Railway Company, and had started across the west track, he saw that said car was coming at an unusual, excessive, and reckless speed, and that the motorman in charge thereof was not slackening the speed of the car, and at said time realizing, the said car being about 100 feet distant from him, that he could not safely get across the west track of said defendant company, he turned his horse as quickly as he could, to get back into a position of safety; that the plaintiff immediately and continuously used his best efforts to get into a position of safety, but, notwithstanding said effort on his part, the servants of defendant, Indianapolis Street Railway Company, in charge and control of said car, who saw or by the exercise of reasonable care could have seen, plaintiff's danger, and his efforts to get into a position of safety, made no effort to stop said car, nor slacken its speed, nor to prevent a collision with plaintiff's horse and buggy; that the servants of defendant, Indianapolis Street Railway Company, in charge of said car, while in the line of their duty, could, in the exercise of proper and reasonable care, after they saw, or could by ordinary care have seen, that the plaintiff was in a place of danger from which he was trying to escape, have stopped said car or slackened the speed thereof so as to have avoided the collision, etc. *** And the plaintiff avers that at said time he could have crossed said track in safety, had not the defendant ran its said car at such a dangerous, unusual, excessive, and reckless rate of speed, which manner of operating said car was not known, and could not have been known, by plaintiff until he got into a place of danger on said tracks as aforesaid; that, at the instant of collision, he was using every effort in his power to escape from a situation suddenly rendered perilous by said negligent acts of said defendant.” The third paragraph is substantially the same as the second one, except for an additional averment that the motorman had negligently ran the car at such speed as to lose control thereof, whereby he was unable to prevent plaintiff's injury after the danger became apparent to him. One hundred and eight interrogatories were submitted to and answered by the jury. The length and multiplicity of said interrogatories not only render it impracticable to set them out in this opinion, but, because of the necessary overlapping of questions in order to make so many and the resulting conflict in answers, defeat the legitimate and statutory end to which interrogatories to the jury are permitted.

Both street car companies and those traveling on city streets in other vehicles must use the street at all times with a just regard to the rights of the other. Indianapolis St. Ry. Co. v. O'Donnell (Ind. App.) 73 N. E. 163;Howard v. Indianapolis St. Ry. Co., 29 Ind. App. 515, 64 N. E. 890; Indianapolis St. Ry. Co. v. Marschke (No. 20,830; May 18, 1906) 77 N. E. 945;Cincinnati St. Ry. Co. v. Snell, 54 Ohio St. 197, 43 N. E. 207, 32 L. R. A. 276;Newark, etc., v. Block, 55 N. J. Law, 605, 27 Atl. 1067, 22 L. R. A. 374;Thompson v. Salt Lake, etc., 16 Utah, 281, 52 Pac. 92, 40 L. R. A. 172, 67 Am. St. Rep. 621;Cogswell v. West Street, etc., 5 Wash. 46, 31 Pac. 411;Tacoma R. Co. v. Hayes, 110 Fed. 496, 49 C. C. A. 115;Cincinnati St. Ry. Co. v. Whitcomb, 66 Fed. 915, 14 C. C. A. 183;Schilling v. Metropolitan, etc., Co. (Sup.) 62 N. Y. Supp. 403. The driver of an ordinary vehicle can proceed over a street railway in the face of an approaching car, when, and only when, he has reasonable ground for believing that he can pass in safety if both he and those in charge of the car act with reasonable regard to the rights of others. The duty to slow up or stop, if necessary to prevent a collision, rests equally on each party. Under ordinary corcumstances, the first to reach the crossing, if each has been moving at a reasonable rate of speed, has the right to proceed over it before the other, but if it be apparent to the traveler that the motorman does not respect this right, he must stop and give way, if a collision can thus be avoided. Baldwin, Railroad Law, 418. “We need scarcely say that to justify the sustaining of such a motion [for judgment on the answers to interrogatories] the answers must make out a case of such antagonism between them and the general finding on some vital point as not to be capable of being removed by any evidence which would have been admissible under the issues.” Indianapolis Street Ry. Co. v. Marschke, supra.

The answers to interrogatories show that there were two car tracks in Illinois street in the city of Indianapolis, 4 feet 8 1/2 inches apart, the rails of which were laid even with the pavement, and that the roadway on each side of said tracks was 14 feet wide; that cars going south used the west, and those going north the east, track. Plaintiff was driving a horse and buggy north along the east side of the street, and the car, with which he subsequently came in collision, was coming from the north. He turned to go across the track, intending to go south on the west side of the street, to a residence at which he wished to stop. There was nothing to prevent him seeing the car, and nothing to prevent the motorman seeing him. From the time when he first turned in the direction of the track, until he was struck, he moved about 15 feet, at the rate of about 4 miles an hour. The car, when he first began to turn, was about 225 feet north of him. Illinois street was intersected by Twenty-Ninth street at a point about 160 feet north of him. The car was running at the rate of 20 miles an hour. When the car was about 60 feet distant he first discovered the rate of speed at which it was going, and acted quickly, in attempting to avoid a collision. The answers do not say in what such action consisted. Its particulars are involved in the motion for a new trial, and are shown by the evidence. It is further stated by the answers that when he first saw the car he paid attention to its speed, which he under-estimated because of the distance intervening; that he did not know it was dangerous to try to cross the track, and was prevented from knowing it because of the distance of the car from him, his position in front of the car, and misjudging its speed; that the could not have known in time to have avoided his accident; that it would be dangerous to try to cross; and that a reasonably prudent man, under the circumstances, would not have avoided the accident. The charge in the complaint is that the car was run at a high and dangerous rate of speed. The issue thus tendered was an issue for the jury, to be determined by it with reference to existing conditions and circumstances. Citizens' St. Ry. Co. v. Hamer, 29 Ind. App. 426, 430, 62 N. E. 658, 63 N. E. 778;Chicago City Ry. Co. v. Robinson, 127 Ill. 9, 18 N. E. 772, 4 L. R. A. 126, 11 Am. St. Rep. 87; Thompson v. Salt Lake, etc., Co., supra; Cincinnati St. Ry. Co. v. Snell, supra; Roberts v. Spokane R. Co., 23 Wash. 325, 63 Pac. 506, 54 L. R. A. 184;Robbins v. Springfield St. Ry. Co., 165 Mass. 30, 42 N. E. 334;Lawler v. Hartford St. Ry. Co., 72 Conn. 74, 82, 43 Atl. 545;Woodland v. New Jersey St. Ry. Co., 66 N. J. Law, 456, 49 Atl. 479;Indianapolis St. Ry. Co. v. Darnell, 32 Ind. App. 687, 68 N. E. 609. “Whether the appellant, at the time of the accident, had exercised the care which the law exacted, in the operation of its car, was a question of fact to be determined by the jury under all the circumstances and evidence in the case applicable to that point. *** While it is the province or right of the trial court to instruct a jury fully, freely, and pointedly on all matters of...