Indianapolis St. Ry. Co. v. O'Donnell

• Decision Date: 27 January 1905
• Docket Number: No. 4,878.,4,878.
• Citation: 73 N.E. 163,35 Ind.App. 312
• Parties: INDIANAPOLIS ST. RY. CO. v. O'DONNELL.
• Court: Indiana Appellate Court

35 Ind.App. 312

73 N.E. 163

INDIANAPOLIS ST. RY. CO.

v.O'DONNELL.

No. 4,878.^*

Appellate Court of Indiana.

Jan. 27, 1905.

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

Action by James O'Donnell against the Indianapolis Street Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.F. Winter and W. H. Latta, for appellant. William Irvin and O. U. Newman, for appellee.

ROBY, J.

Appellee's complaint stated that on March 24, 1902, at about 11 a. m., he was driving a two-horse wagon eastward along the south side of Washington street, in the city of Indianapolis, approaching Capitol avenue at the southeast corner of the statehouse; that, as he was driving across the railway tracks on Washington street in a careful and prudent manner, appellant caused one of its cars to be negligently run over said crossing at a dangerous rate of speed, to wit, 20 miles an hour, without signal, and negligently ran the same against his wagon, causing the injuries to him complained of. The issue was made by general denial; trial by jury; verdict in favor of plaintiff for $700; motion for a new trial overruled; judgment on verdict.

The only assignment of error argued is that the court erred in overruling the motion for a new trial, and the question for decision is whether the evidence is sufficient to sustain the verdict. The defendant introduced no evidence. The facts, so far as essential, are: That appellee was hauling sand with a wagon and team of horses at the time stated, and drove along the south side of Washington street eastward to the east side of Capitol avenue where it intersects said street, at which place he turned north, intending to go in that direction along Capitol avenue. There were double tracks along Washington street, west-bound cars using the north and east-bound cars the south track. As he approached the south track, his horses' heads being a few feet distant therefrom, he stopped to avoid a street car going west on the north track. It having passed, he proceeded forward at about three miles an hour, and when the hind wheels of his wagon were between the rails of the south track it was struck by a car coming from the west at a rate of speed variously estimated at from 15 to 20 miles an hour, by reason of which collision appellee was injured. He drove at least 20 feet after the west-bound car passed before the collision occurred. The evidence is that the car was distant from 70 to 150 feet when he started to go across. In view of the difference between the speed of the car and the wagon, and the distance from which the wagon was driven, the jury could not do otherwise than to find, as the general verdict does, that, had the car been running at a safe rate of speed and properly controlled, there would have been no collision. Appellee testified that he glanced west as he started across, but noticed no car approaching. The track was straight and unobstructed. That appellant was guilty of actionable negligence as charged is not questioned. It is, however, contended that the undisputed facts show appellee to have been contributorily negligent, and that the court should have directed a verdict for appellant. The disposition of the appeal, therefore, depends upon whether this court may hold as a matter of law that appellee was guilty of contributory negligence.

One of the highest functions of an appellate court is to declare logical rules for the government of public conduct and its own guidance. The following general propositions are believed to be logically accurate, and are supported by the vast consensus of judicial decisions: (1) When the established facts of a given case show, without room for diverse inference, that the plaintiff did not have reasonable ground for believing that he could cross without danger, then his contributory negligence may be declared by the court. (2) If the facts show that there was no reasonable ground upon which the plaintiff did anticipate, or should have anticipated, danger in attempting to cross, then his freedom from contributory negligence may be so declared. (3) In those cases where facts are disputed, or different inferences are deducible from undisputed facts, the question of contributory negligence becomes one of mixed law and fact, to be decided by the jury. Pittsburg, etc., Ry. Co. v. Bennett, 9 Ind. App. 115, 35 N. E. 1033;Louisville, etc., R. R. Co. v. Williams, 20 Ind. App. 576, 51 N. E. 128;Baltimore, etc., R. Co. v. Walborn, 127 Ind. 148, 26 N. E. 207;Sioux City, etc., v. Stout, 84 U. S. 657, 21 L. Ed. 745;Washington, etc., R. R. Co. v. McDade, 135 U. S. 554, 10 Sup. Ct. 1044, 34 L. Ed. 235;Keller v. Gaskill, 9 Ind. App. 670, 36 N. E. 303;Cincinnati, etc., R. Co. v. Grames, 136 Ind. 39, 34 N. E. 714; Thompson's Negligence, §§ 427, 429, 430.

If one deliberately or indifferently cast himself under the wheels of a street car, or those of any other vehicle, the lack of room for the inference of ordinary care upon his part enables the court to adjudge contributory negligence as a matter of law. Illustrative cases are: Moran v. Leslie (Ind. App.) 70 N. E. 162;Citizens', etc., Co. v. Helvie, 22 Ind. App. 515, 53 N. E. 191;Kessler v. Citizens', etc., Co., 20 Ind. App. 427, 50 N. E. 891;Young v. Citizens', etc., Co., 148 Ind. 54, 47 N. E. 142. The facts may also be of such a character that the court may adjudge absence of contributory negligence as matter of law. They are rarely called upon to do so. But if, when appellee started to cross the track, he had seen a street car half a mile away, which, contrary to any reasonable expectation, was brought in collision with him before he could clear the track, in the absence of further notice of the impending danger than the mere presence of the car at the distance named could give, it might be declared as a matter of law that he was not contributorily negligent. The other class of cases are those in which there is a dispute as to what the facts are, or a dispute as to what inferences should be drawn from undisputed facts, in both of which cases, if there is room for a difference of opinion among reasonable men, the question is left to the jury under instructions from the court as to the law. Chicago, etc., v. Martin, 31 Ind. App. 308-315, 65 N. E. 591;Citizens' St. R. Co. v. Hamer, 29 Ind. App. 426, 430, 62 N. E. 658, 63 N. E. 778; Baltimore, etc., v. Walborn, supra; Sioux City, etc., v. Stout, supra. It is primarily necessary in each instance to determine under which of the foregoing classes the given facts bring the case.

In the actual use of a public highway every person has an equal right to use it for his own best advantage, to suit his own convenience or pleasure, but at all times with a just regard to the like rights of every other person. Stringer v. Frost, 116 Ind. 477, 19 N. E. 331, 2 L. R. A. 614, 9 Am. St. Rep. 875;Green v. Eden, 24 Ind. App. 591, 56 N. E. 240;Scofield v. Myers, 27 Ind. App. 375, 60 N. E. 1005. “A driver of an ordinary vehicle can proceed at a highway crossing to go 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 circumstances 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 driver that the motorman does not intend to respect this right, he must stop and give way, if a collision can thus be avoided.” Baldwin, Railroad Law, p. 418. If the facts exhibited come short of what is required to enable the court to declare contributory negligence, it is the misfortune of the defendant, the defense being an affirmative one by statute. If the existence of certain facts is inconsistent with such declaration, their absence must appear from the evidence in order that it may be made.

There is constant difficulty in the application of the foregoing well-established general doctrine, due to the variety of facts connected with the different occurrences which come before the courts for examination. The main features of many accidents have a general likeness to each other in that injuries are suffered through collision, but the details which give character to the conduct of the parties are not twice alike. Unanimity of decision is therefore attained when the same principles are applied in every case. Unanimity of result in upholding or overthrowing judgments rendered against street car companies for damages on account of such collisions is neither possible nor desirable. Each case must be determined upon its own facts. The language of different opinions cannot be disassociated from the facts before and considered by the court. The text-writer above quoted says: “In practical effect these doctrines give any railroad car approaching a highway crossing what amounts to a right of precedence. This follows from the rule respecting contributory negligence. No man has the right to calculate close chances as to his ability to reach the track before the car, and throw the risk of injury on the other party. As to whether the chances were close, however, and whether the railroad company were not the one really in fault, will ordinarily be a question for the jury. When a traveler is struck by a car, the collision may be due to a sudden increase of the rate of speed which he had no reason to anticipate, or to his meeting with some unexpected and extraordinary impediment upon the crossing. All the attendant circumstances are to be taken into account.” Baldwin on Railroad Law, p. 418.

When the appellee started to drive across the tracks, the car which subsequently collided with his wagon was some distance away. What that distance was is one relevant fact. It may be of...