Indianapolis St. Ry. Co. v. Zaring
| Decision Date | 07 June 1904 |
| Docket Number | No. 4,520.,4,520. |
| Citation | 71 N.E. 270,33 Ind.App. 297 |
| Parties | INDIANAPOLIS ST. RY. CO. v. ZARING. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Johnson County; W. J. Buckingham, Judge.
Action by Leander B. Zaring, as administrator, against the Indianapolis Street Railway Company. From a judgment in favor of plaintiff, defendant appeals. Reversed.
For dissenting opinion, see 71 N.E. 501.Winter & Winter, W. H. Latta, and Miller & Barnett, for appellant. F. P. Baker, W. A. Johnson, and Dupree & Slack, for appellee.
This cause originated in the Marion superior court, from whence it was venued to the court below. Appellee's decedent was riding a bicycle on one of the public streets of the city of Indianapolis, and while attempting to cross appellant's tracks he came into collision with one of its cars, and was killed. Appellee prosecuted this action to a successful termination in the court below to recover damages for his death, which was imputed to appellant's negligence. As no question is argued touching the sufficiency of the pleadings, they need not be noticed in this connection. Trial by jury, verdict and judgment for appellee for $850. The jury found specially, also, by answers to interrogatories. Appellant's motions for judgment on the answers to interrogatories and for a new trial were each respectively overruled. The only questions argued arise under the assignment of error questioning the correctness of these rulings.
The negligence imputed to appellant was the careless and reckless operation of one of its cars being run on Virginia avenue, as it approached the intersection of Louisiana and New Jersey streets, in that it was run at a dangerous and reckless rate of speed, and that no warning was given to appellee's decedent of its approach by the sounding of the gong or otherwise. There are many facts found, as disclosed by the answers to interrogatories, that are wholly unessential and immaterial to the determination of the legal questions involved. Those questions are, first, do the special facts found show that appellant was guilty of the negligence charged? and, second, do they show that appellee's decedent was free from negligence? If they do, then such special findings are in harmony with the general verdict. But if they disclose the fact that appellant was thus negligent, and that the decedent was guilty of negligence that contributed to his death, then there is irreconcilable conflict between the general verdict and the answers to interrogatories. In such case the rule is firmly established that, though the defendant was guilty of the negligence imputed to it, yet, if the plaintiff was at fault, he cannot recover. The facts specially found do not overcome the general verdict as to the negligence of appellant. On the contrary, by them its negligence is emphasized, for it is shown that it ran its car over and upon a public street at the rate of 20 miles per hour, approaching the intersection of three streets, where persons on foot and in vehicles were likely to be traveling in different directions, and apparently heedless of the rights of travelers on such streets. Such conduct must be regarded as negligence.
The remaining question-the decedent's negligence or nonnegligence-is more difficult to determine. The facts upon which the determination of this question depends may be summarized as follows: The decedent was a man of mature years and judgment, and was in the possession of his senses of hearing and seeing. He was a man of average strength, judgment, and intelligence. The accident occurred in Virginia avenue where it intersects Louisiana and New Jersey streets. Said avenue runs northwest and southeast, and is 50 feet wide between the curbs, and is paved with asphalt, and has sidewalks on either side 20 feet wide. Along said avenue there are two street car tracks, and cars were operated frequently thereon. New Jersey and Louisiana streets are 90 feet wide from property line to property line where they intersect with Virginia avenue, and at said intersection a large space is formed at that point. There is a heavy grade from the intersection of the three streets on Virginia avenue leading to and over the viaduct. He was riding a bicycle, and was a competent and experienced rider. He could have stopped his bicycle in a distance of 10 feet at the rate of speed he was going. He was familiar with the location and surroundings, and knew that cars were frequently passing to and fro on the double tracks on Virginia avenue. He was riding six to eight miles per hour. There were two wagons on the street, and he increased his speed so as to pass around them. He approached Virginia avenue from the south, riding north on New Jersey street. The jury found that the two wagons in the street obstructed decedent's view of the approaching car only while he was riding a...
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