Indianapolis St. Ry. Co. v. Schmidt

• Decision Date: 30 June 1904
• Docket Number: No. 4,525.,4,525.
• Parties: INDIANAPOLIS ST. RY. CO. v. SCHMIDT.
• Court: Indiana Appellate Court

35 Ind.App. 202

71 N.E. 663

INDIANAPOLIS ST. RY. CO.

v.SCHMIDT.

No. 4,525.^*

Appellate Court of Indiana, Division No. 2.

June 30, 1904.

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

Action by Henry C. Schmidt against the Indianapolis Street Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Winter & Winter and W. H. Latta, for appellant. W. N. Pickerill and Miller, Elam & Tesler, for appellee.

ROBY, P. J.

Action by appellee to recover damages for personal injuries. Verdict and judgment for $300. The sole question argued is whether appellee's own acts and omissions are of such quality as to bar recovery on the ground of contributory negligence. The charge made by the amended third, fourth, and fifth paragraphs of complaint, upon which judgment depends, is that appellant negligently ran one of its street cars against appellee, who was driving a team and wagon across a street in Indianapolis upon which appellant's tracks were laid. The negligence charged was in running the car at an excessive speed without signal. It is averred in the fourth paragraph that appellant was on August 3, 1900, a corporation operating a street railway system in the city of Indianapolis, and along South street, upon which there was a double track; that the part of said street at which the plaintiff received his injury was in the business part of said city, and much frequented and used; that he was driving a team hitched to a wagon, which was heavily loaded, and could only move slowly; that he drove across appellant's tracks, and, when almost over, was struck by one of its street cars, negligently run at a dangerous rate of speed, to wit, 20 miles an hour, without making any effort to check or stop the same so as to prevent the collision with the said wagon, and without sounding any gong or giving any signal. “And plaintiff avers that after he started across said tracks, and his intention so to do was apparent, and after his team and wagon were upon said south track of skid railway line, defendant's employés, acting within the scope of their employment, and operating said car approaching from the west, had they exercised reasonable care and diligence, could have easily seen plaintiff, team and wagon, and known his purpose, and controlled and stopped said car with appliances furnished for that purpose in time to have prevented any collision with the wagon upon which plaintiff was riding, and avoided any injury to plaintiff, but notwithstanding,” etc. They are averred to have negligently run said car at 20 miles an hour, without attempting to control it, against the wagon, inflicting the injuries complained of. The fifth paragraph is substantially identical with the fourth, except that the failure of the motorman to stop the car after discovering appellee's peril is attributed to the neglect of appellant to properly equip its car.

The facts developed on the trial were to the effect that appellee was driving a span of mules, hitched to a heavy wagon used to haul furniture, and loaded at the time with seven sideboards, which be was taking to a freighthouse. The sideboards were higher than his head; he sitting on the driver's seat, covered by a fixed umbrella. South street intersects Senate avenue at right angles. Appellee drove along the south side of South street until he reached Senate avenue, when he turned north and started across the street and car tracks. He had driven along the south side of South street before making such turn from Missouri street a distance of 500 feet. When he came upon South street he looked both east and west for cars, but saw none. When he had traversed about half the distance between Missouri street and Senate avenue, and was about 250 feet from the point of collision, he again looked to the west around the side of his wagon, but saw no car. He then drove on a slow trot to Senate avenue, and turned across the car track on a curve, without again looking; slowing down to a walk. The wagon, when nearly across, was struck by a car coming from the west at the average rate of 16 miles an hour, and without signals until very near the wagon, when the bell was rung. The accident occurred in the daytime. The street car came up behind the wagon, and had it in view two blocks before the collision. The wagon was driven near the south rail of the track upon which the car was running. After it turned at Senate avenue, it was driven, as the jury found in answer to interrogatories, 27 feet before the collision, at the rate of 2 miles an hour, so that the car must have been over 200 feet away when appellee's peril became apparent. That he was in danger was due to the high rate of speed at which the car was being run, and, knowing that, and the conditions under which the appellee was proceeding to cross, the finding of the jury that the danger was evident to the motorman, in the exercise of his faculties, in time to have checked the speed of the car and avoided the collision, is not without support in the evidence. Appellee's view to the west was cut off by the lead in his wagon.

The questions for decision, as stated by appellant, are: “First. Was the appellee negligent in crossing the tracks of the appellant? Second. Did that negligence contribute to his injury? The same questions of law are involved in every error assigned, and the discussion of those questions reaches the merits of the case.”

Whether appellee was guilty of contributory negligence in crossing the track as he did, depends upon whether or not the strict rules which require one about to go over a steam railroad track at a highway crossing to look and listen for approaching trains is applicable to one about to cross a much-traveled street, along which an electric street railway is operated. Appellee drove north on Missouri street to South street, and then turned east, at which time he looked west along the car track. About 250 feet from the point of collision he leaned to the north, and looked along the side of his load for an approaching car, after which he drove 250 feet further at the rate of 4 miles an hour, then turned to cross the tracks, and was not in position to see the approaching car until the front end of his wagon had swung far enough around so that his seat was substantially parallel with the tracks.

The author of a recent work on Railroad Law, after stating the look and listen rule, discusses the question now under consideration as follows: “These rules do not apply to such parts of interurban railroads laid in highways or on ordinary street railways as are in populated communities. The crossing in this case is a crossing of two highways of the same kind. The railway is here using one of these highways lengthwise, and it is also being used at the same time and in a similar way by other vehicles. The person approaching the track from the cross-street has to look out not only for the electric cars, but for ordinary vehicles. He cannot, as in the case of a through railroad, concentrate his attention on the railroad track. His safety may be endangered by a vehicle coming up from any part of the highway. The railroad car is also under easy control, and can be readily and quickly stopped. Its rate of speed in populated districts is generally moderate. There is often no substantial risk in crossing in front of one approaching and near at hand. There is not the same danger in stopping a horse at the edge of the track that attends stopping one at the edge of a track used for fast and heavy trains. Hence the absolute stop, look, and listen rule is nowhere applied to street railway crossings in cities.” Baldwin, American R. R. p. 421. That the look and listen rule is not applicable to those passing over car tracks laid in a city street has been repeatedly decided in this state. Muncie St. R. Co. v. Maynard, 5 Ind. App. 372, 32 N. E. 343;Citizens' R. Co. v. Abright, 14 Ind. App. 433, 42 N. E. 238, 1028;Citizens' St. R. Co. v. Damm, 25 Ind. App. 511, 58 N. E. 564;Marchal v. Indianapolis St. R. Co., 28 Ind. App. 133, 62 N. E. 286;Citizens' St. R. Co. v. Hamer, 29 Ind. App. 426, 62 N. E. 658, 63 N. E. 778;Evansville St. R. Co. v. Gentry, 147 Ind. 408, 44 N. E. 311, 37 L. R. A. 378, 62 Am. St. Rep. 421.

The verdict is therefore conclusive, and the judgment will have to be affirmed.

The same result follows the adoption of appellant's hypothesis; i. e., that appellee was negligent in attempting to drive across the tracks without having looked both ways immediately before so doing. Negligence, to prevent recovery by the plaintiff, must contribute to the injury complained of. It is not contributory unless it is the proximate cause of the injury. Beach, Con. Neg. §§ 24, 33; 1 Thompson, Neg. § 46; Baldwin, R. Law, p. 425.

The question of proximate cause is the same, whether it relates to the negligence of the plaintiff or defendant, and in either case it is primarily a question of fact for the jury. Chicago, etc., v. Martin, 31 Ind. App. 308, 315, 65 N. E. 591. The subject is not a new one. Among other cases in which it has been considered is McGahan v. Indianapolis Gas Co., 140 Ind. 335, 37 N. E. 601, 29 L. R. A. 355, 49 Am. St. Rep. 199, which was decided upon facts substantially as follows: The gas company was notified that gas was escaping from its pipes upon certain premises, and requested to cut off the supply by closing a valve provided for that purpose, and under its exclusive control. This it failed to do, and it was conceded that such omission was actionable negligence on its part. The owner of the building employed the plaintiff, a plumber, to locate and remedy the defect in the pipes through which the gas escaped, and while searching for such defect he was injured by an explosion of escaped gas. The Supreme Court held that the negligence of the gas company was not the proximate cause of the injury; that the injury could not have occurred without some agency acting upon the loose gas, and that...