Indianapolis St. Ry. Co. v. Marschke

• Decision Date: 01 April 1904
• Citation: 70 N.E. 494
• Parties: INDIANAPOLIS ST. RY. CO. v. MARSCHKE.
• Court: Indiana Appellate Court

70 N.E. 494

INDIANAPOLIS ST. RY. CO.

v.MARSCHKE.^*

Appellate Court of Indiana.

April 1, 1904.

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

Action by Bertha A. Marschke against the Indianapolis Street Railway Company. Judgment for plaintiff, and defendant appeals. Reversed.

Winter & Winter, for appellant. P. W. Bartholomew and R. F. Stuart, for appellee.

WILEY, P. J.

Appellee was injured by one of the appellant's cars colliding with a buggy in which she was riding, and prosecuted this action to a successful termination in the court below to recover damages for such injury. The question of appellant's negligence, as charged in the complaint, and appellee's freedom from negligence, were issues of fact, which the jury, by its general verdict, resolved in her favor. The court submitted interrogatories to the jury upon specific questions of fact, which were duly answered, and upon such answers appellant moved the court to render judgment in its favor, notwithstanding the general verdict, which motion was overruled. Appellant moved for a new trial, which was also overruled. The rulings on these two motions are the only errors assigned, and will be considered in their order.

The evidence shows that appellee was injured on Virginia avenue, in the city of Indianapolis, about 500 or 600 feet southeast from the top of the viaduct. She was driving on the avenue, going in a southeasterly direction. Appellant has a line of street railway tracks on said avenue. Outgoing cars run over the southeast track, and incoming cars over the northeast track. The grade from the top of the viaduct extends a distance of 500 or 600 feet to the intersection of Louisiana street, running east and west. As appellee was driving southeast on the avenue, one of appellant's cars was going in the same direction, and descending the grade. She was driving far enough from the track on which the car was approaching for it to pass without striking her buggy. There was another buggy or wagon in front of her which she desired to pass, as she was driving more rapidly, and to get by it turned to the left, toward the track, and came in such close proximity to it that the car could not pass without striking it.

The specific facts, as exhibited by the answers to interrogatories, reduced to narrative form, are as follows: Appellee was injured, at the intersection of Virginia avenue and Louisiana street, by one of appellant's cars striking her buggy. The distance from the top or crown of the viaduct to Louisiana street is about 600 feet. The view along the right-hand track, between where appellee was and the crown of the viaduct, was unobstructed, and a car on such track could have been seen, by one traveling by the side of the track, after it got to the top or crown of the viaduct, at any point between there and Louisiana street. Appellee was driving southeast on Virginia avenue, descending the grade from the viaduct, and such a distance from the track that a car could pass the buggy without striking it. The motorman on the car saw appellee driving beside the track, and could see that there was room for his car to pass without striking her buggy. At a point about 100 feet from where she was struck, appellee found a wagon in front of her, which was stopped or going slower than she was. She desired to pass such wagon by driving between it and the track on which appellant's car, by which she was struck, was approaching. The car was then between her and the top of the viaduct, and was in sight from any point on the avenue between the center of Louisiana street and the top of the viaduct. There was nothing to prevent appellee from seeing the car, if she had looked, from the time it came over the top of the viaduct until it struck her. Appellee was driving at a speed not exceeding five, and not less than four, miles per hour. The speed of the car, after it came over the top of the viaduct, was not to exceed 20 miles per hour. When appellee found the wagon in her way, she turned her buggy to the left to pass between it and the right-hand track, and in so doing approached so close to the track that the car could not pass without striking it. The wagon in front of appellee was an indication to the motorman that appellee intended to turn to pass the wagon, thus getting nearer the track. The motorman knew, or had reason to know, that appellee would turn toward the track before she actually began to make the turn. The motorman, or no one in charge of the car, could have stopped it in time to have prevented it from striking appellee after she began to turn toward the track. When the car was at the top of the viaduct, appellee was about halfway between that point and the center of Louisiana street at its intersection with Virginia avenue.

The particular negligence with which appellant is charged, in the language of the complaint, was “one of defendant's cars, negligently propelled by defendant's servants at a rapid and dangerous rate of speed, *** without ringing the gong or sounding any alarm of its approach, *** carelessly and negligently ran the running board and other parts of said car upon and against plaintiff's buggy, *** and threw plaintiff therefrom,” etc. The rate of speed at which the car is alleged to have been running was 20 miles per hour. By its general verdict the jury found that appellant was guilty of negligence as charged, and that appellee was without fault on her part. The general verdict must therefore stand, unless it is overcome by the facts specially found. If the facts thus found show that appellant was not guilty of negligence as charged, or that appellee, by her own negligence, contributed to her injury, then such facts would be in irreconcilable conflict with the general verdict, and would be of controlling influence. Appellant's learned counsel argue that the answers to the interrogatories affirmatively show that the appellee was guilty of negligence in turning her buggy onto the track, for it is established that the car was between her and the top of the viaduct before she began to turn in toward the track, and was in plain view from any point on Virginia avenue between the top of the viaduct and the intersection of Virginia avenue and Louisiana street, and there was nothing to prevent her from seeing it if she had looked. The question of appellee's negligence must be determined in view of the rule, so firmly established in this state, that the law will presume that she actually saw what she could have seen, if she had looked, and heard what she could have heard, if she had listened. Young v. Citizens', etc., Ry. Co., 148 Ind. 54, 44 N. E. 927, 47 N. E. 142;Cones v. Cincinnati, etc., Ry. Co., 114 Ind., at page 114, 16 N. E. 638;Lake Erie, etc., Ry. Co. v. Stick, 143 Ind. 449, 41 N. E. 365. If she could have seen the approaching car, by looking, in time to have escaped colliding with it, it will be presumed, in case of collision, either that she did not look, or, if she did, she did not heed what she saw. Such conduct is held to be negligence per se. Ohio, etc., Ry. Co. v. Hill, 117 Ind., at page 61, 18 N. E. 461;Cones v. Cincinnati, etc., Ry. Co., 114 Ind., at page 330, 16 N. E. 638; Lake Erie, etc., Ry. Co. v. Stick, supra; Young v. Citizens', etc., Ry. Co., supra. If it was negligence for her to drive on the track so an approaching car would strike her, without first looking, then she could not recover, for by her own act she contributed to her injury. In Young v. Citizens', etc., Ry. Co., 148 Ind. 54, 44 N. E. 927, 47 N. E. 142, such conduct was declared to be negligence. The case of Kessler v. Citizens' Street Railway Co., 20 Ind. App. 427, 50 N. E. 891, decides the identical question we are now considering, with this exception: In that case appellee was driving on a street where appellant operated a line of street cars, and was driving at a safe distance from the track so a car could pass. To get around a wagon in front, appellee turned on the track about 40 feet in front of a car going in the same direction. The motorman did not have any warning that appellee was going to turn onto the track, and could not have stopped the car in time to avoid a collision after he discovered the danger. Upon these facts it was held that appellant could not recover. Here the jury found that the wagon in front of appellee was an indication to the motorman that appellee intended to turn to pass it, and that he knew, or had reason to know, she would turn toward the track. We think this finding is largely speculative, and more the statement of a conclusion than a substantive fact. The finding casts upon the motorman the presumption that she would deliberately imperil her life and safety by driving on the track, when he had a right to presume that she would not do so.

If it was negligence for appellant to run its car at the rate of speed it did, it was likewise negligence for appellee to drive upon the track in front of it, when she had ample opportunity of seeing its approach, if she had looked, and could thus have avoided injury. The law is too well settled to be longer in doubt that a person must exercise his own faculties so as to avoid danger, if he can reasonably avoid it; and a failure to do so, if it contributes proximately to the injury, will prevent the one thus injured from recovering damages therefor. Salem-Bedford Stone Co. v. O'Brien, 12 Ind. App. 217, 40 N. E. 430. If appellee had looked, she could have seen the approaching car, and realized her impending danger, and thus avoided injury. This she did not do, but deliberately placed herself in a place of peril, without taking any precaution for her safety. The two essential elements of contributory negligence are want of ordinary care by the plaintiff, and a casual connection between such want of care and the injury. Salem-Bedford Stone Co. v. O'Brien, supra. Here these two elements combine, for appellee did not use ordinary care, and there was a direct...