Indianapolis St. Ry. Co. v. Tenner

• Citation: 67 N.E. 1044,32 Ind.App. 311
• Parties: INDIANAPOLIS ST. RY. CO. v. TENNER.
• Decision Date: 25 June 1903
• Court: Court of Appeals of Indiana

32 Ind.App. 311

67 N.E. 1044

INDIANAPOLIS ST. RY. CO.

v.TENNER.¹

Appellate Court of Indiana, Division No. 2.

June 25, 1903.

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

Action by Louise Tenner against the Indianapolis Street Railway Company. From a judgment for plaintiff, defendant appeals. Reversed.Winter & Winter and W. H. Latta, for appellant. Sherman Steele and Henry P. Clancy, for appellee.

WILEY, J.

Appellee sued appellant to recover damages for personal injuries inflicted upon her by the alleged negligence of appellant. The complaint avers that appellant owned and operated a system of street railways in Indianapolis; that it had a double track on Massachusetts avenue, and that said avenue runs in a northeasterly direction from the central part of the city to the city limits; that cars going in a northeasterly direction use the east track, and in going the opposite direction use the west track; that she was a passenger on an easterly bound car at about 8 o'clock p. m., May 1, 1900; that she desired to alight from said car where North street intersects with said avenue; that the car stopped at the usual place for passengers to alight; that she did alight, and walked around the rear of the car to cross the two tracks to reach North street, upon which she desired to go west; that as she was stepping upon and crossing the west track one of appellant's cars, in charge of its servants, and without any warning, was run against and upon her, whereby she was injured. Answer in denial, trial by jury, and a general verdict returned for appellee. With the general verdict the jury found specially by way of answers to interrogatories. Appellant's motion for judgment in its favor upon the answers to interrogatories, notwithstanding the general verdict, was overruled, and this ruling presents the only question for decision not waived.

Reduced to narrative form, the following facts are exhibited by the answers to interrogatories: That there was a space of 5 feet and 1 inch between the tracks where appellee attempted to cross the same; that appellee alighted from an east-bound car, and at once passed behind said car, within one or two feet of it, and over the space between the tracks and upon the west track; that she passed over the tracks at the speed of three miles per hour; that she had good eyesight and hearing; that she was 26 years old, strong and active, and in full use of her limbs and faculties; that the car that collided with appellee was lighted with electric lights, and had an electric headlight of 16 candle power; that said car ran at the rate of 10 miles per hour the 100 feet first before it reached the point of collision; that when she reached the first rail of the west track the car was a distance of one car length from her; that when she passed behind the east-bound car she knew that it obstructed her view of any car that might be coming from the other direction; that she did not know that the car from which she alighted would soon start, and in a moment or two cease to obstruct her view toward the east; that there is no evidence that she looked east before going behind the east-bound car; that the east-bound car prevented appellee from looking east before going behind it; that there was no evidence as to what prevented appellee from waiting until the east-bound car passed and ceased to obstruct her view; that there was no evidence as to how long she would have had to wait for the east-bound car to pass on and leave the view of the west track clear; that appellee would have to go two feet over the north rail of the east track to have a clear view of the street toward the east; that when she got in the space between the tracks she could have seen east along the north track three car lengths; that when appellee got into the space between the tracks she could have seen a car on the north track a distance of three car lengths; that while she was going over the space between the tracks she was going slow enough and had enough control over her movements that she could have stopped at any place while in such space, and before going dangerously near the north track; that the car that collided with appellee was not making a great noise; that she could have heard the noise 30 feet away if she had diligently listened while in the space between the tracks; that there was no evidence as to what prevented appellee from hearing the noise of the approaching car; that the car was going 8 miles an hour at the time of the collision; that it was running 10 miles per hour when it was within 50 and 30 feet from the point of the collision; that 70 feet from that point it was running 11 miles per hour; that appellee did not see or hear the car that struck her, or know of its approach, until she stepped over the first rail of the north track; that she had her left foot over the south rail of the north track when she first discovered the car that struck her; that, when she did discover it it was so close to her that she could not get off the track before being struck; that the car was one car length from her when she first discovered it; that the car that struck appellee could have been seen from a point between the tracks at all times while it ran the 60 feet immediately before it reached the place of the accident; and that at the time and before the accident appellee was familiar with the location of the tracks and the manner in which cars were operated thereon.

By the general verdict the jury resolved every issuable fact in favor of the appellee, and in that manner found that appellant was guilty of actionable negligence, and that appellee was free from negligence contributing to her injury. This finding must be left undisturbed, unless the facts specially found negative and overcome the facts determined in her favor by the general verdict. If the answers to the interrogatories are antagonistic to and in irreconcilable conflict with any material fact found by the general verdict, then the general verdict must yield to the more potent influence of the facts thus specially found. The answers to the interrogatories do not disclose any facts going to the negligence or want of negligence on the part of appellant, and hence, as to that question, the general verdict is impregnable.

This leaves for consideration and determination the single question of appellee's negligence or want of negligence. If the answers to interrogatories show that appellee's negligence contributed to her injury, then a material fact in discord with the general verdict has been established, and takes away her right to recover; for it is only the unmixed negligence of the defendant in such cases that will warrant a recovery for the plaintiff. Contribution to the injury is destructive to the right to recover. The question of appellee's negligence must be determined in view of the fact that the burden of establishing it is cast upon the appellant.

There are some general propositions applicable to the question for decision which are possibly not seriously controvertible. When appellee alighted from the car on which she had been riding, she at once became a traveler upon a public thoroughfare, and as such the law cast upon her the responsibilities of her surroundings and environments. In crossing over the street car tracks so as to reach the sidewalk of North street, where side desired to go, she was under obligation to use ordinary care and precaution for her own safety, and such ordinary care and precaution must be measured by the situation in which she was placed and the surroundings and conditions that confronted her. The care which a traveler upon a public highway should exercise to protect himself from danger is commensurate with the apparent danger or safety. There is more danger in crossing a street upon which electric cars are run than there is where they are not operated. Likewise there is greater danger in crossing where the travel by electric cars and other vehicles is congested than where it is light. Where two street car tracks run parallel, it is more dangerous to a foot traveler to cross from one track to another, where the view of the tracks is obstructed by a passing or standing car, than it is when the view is clear.

As appellee was required to exercise ordinary care for her own safety, the pivotal question for decision is, what, under the circumstances, conditions, and surroundings, was ordinary care? It is found as a fact that appellee was familiar with the manner in which cars were operated on appellant's tracks. She therefore knew that cars went in a northeasterly direction on Massachusetts avenue on the east track, and in the opposite direction on the west track. She knew that cars stopped for the purpose of taking on and discharging passengers. She knew that cars stopped only a sufficient length of time to take on and discharge passengers. She knew that the car from which she alighted would move on at once and leave the view of the tracks unobstructed. With this knowledge, she was required, in the exercise of ordinary care for her own safety, to look and listen for approaching cars. The rule is that the greater the danger, the higher the degree of care required to constitute ordinary care, the absence of which is negligence. Young v. Citizens' Street R. Co., 148 Ind. 54, 44 N. E. 927, 47 N. E. 142. It is certainly more dangerous to attempt to cross street railway tracks where cars are continuously passing, when such tracks are obstructed from view by a car or other object, than it is when the view is clear. It necessarily follows that to the extent that the car from which appellee alighted was an obstruction, shutting off her view of approaching cars, she was bound to use greater care than under ordinary circumstances. Evansville, etc., R. Co. v. Marohn, 6 Ind. App. 646, 34 N. E. 27;Ohio, etc., R. Co. v. Hill, 7 Ind. App. 256, 34 N. E. 646;Cincinnati, etc., R. Co. v. Grames, 8 Ind. App. 112, 34...