Indianapolis Street Railway Company v. Bolin
| Decision Date | 07 June 1906 |
| Docket Number | 5,371 |
| Parties | INDIANAPOLIS STREET RAILWAY COMPANY ET AL. v. BOLIN |
| Court | Indiana Appellate Court |
Rehearing denied October 5, 1906. Transfer denied December 11, 1906.
From Superior Court of Marion County (64,912); Vinson Carter Judge.
Action by Lewis Bolin against the Indianapolis Street Railway Company and another. From a judgment for plaintiff defendants appeal.
Affirmed.
F. Winter and W. H. Latta, for appellants.
Elmer E. Stevenson and Edward H. Knight, for appellee.
Action by appellee. Verdict and judgment against appellants for $ 6,000. Their motion for judgment on interrogatories returned by the jury was overruled, as was also their motion for a new trial, and said rulings are assigned as error.
An additional assignment challenges the sufficiency of the complaint for the first time, but is not supported by any argument, and is therefore waived.
The complaint was in four paragraphs. The jury were instructed to find for the defendant Indianapolis Street Railway Company upon the fourth paragraph. The issue upon the remaining ones was formed by a general denial. It is alleged in the first paragraph that the Indianapolis Street Railway Company negligently ran one of its cars along Illinois street, in the city of Indianapolis, at a dangerous and reckless rate of speed, to wit, twenty miles an hour, and while so running at said high and dangerous rate of speed negligently ran its car into and against a horse and buggy driven by appellee, thereby inflicting injuries upon appellee. The second paragraph alleges that said company negligently ran one of its cars along said street at a dangerous, unusual, and reckless rate of speed, and, while so running, carelessly and negligently ran said car against the horse which appellee was driving, and the buggy in which he was riding, injuring, etc.; that appellee was traveling on the east side of Illinois street, and when said car was distant several hundred feet from him, and when it was to him, and would have been to any ordinary person, under similar circumstances, in the exercise of ordinary and reasonable care, apparently safe to cross the tracks of said company, he started across the tracks of said company, crossing from the east to the west side of said Illinois street; that after plaintiff had gotten across the east track of said defendant company, and had started across the west track, he saw that said car was coming at an unusual, excessive and reckless speed, and that the motorman in charge thereof was not slackening the speed of the car, and at said time realizing that he could not safely get across the west track of said defendant company--said car being about one hundred feet distant from him--he turned his horse as quickly as he could, to get back into a position of safety; that the plaintiff immediately and continuously used his best efforts to get into a position of safety, but, notwithstanding said effort on his part, the servants of said defendant, in charge and control of said car, who saw, or by the exercise of reasonable care could have seen, plaintiff's danger and his efforts to get into a position of safety, made no effort to stop said car, nor slacken its speed, nor to prevent a collision with plaintiff's horse and buggy; that the servants of said defendant, in charge of said car, while in the line of their duty, in the exercise of proper and reasonable care, after they saw, or could by ordinary care have seen, that the plaintiff was in a place of danger from which he was trying to escape, could have stopped said car or slackened the speed thereof so as to avoid the collision. And the plaintiff avers that at said time he could have crossed said track in safety had not said defendant ran its said car at such a dangerous, unusual, excessive and reckless rate of speed, which manner of operating said car was not known, and could not have been known, by plaintiff until he got into a place of danger on said tracks, as aforesaid; that at the instant of collision he was using every effort in his power to escape from a situation suddenly rendered perilous by said negligent acts of said defendant. The third paragraph is substantially the same as the second one, except for an additional averment that the motorman had negligently ran the car at such speed as to lose control thereof, whereby he was unable to prevent plaintiff's injury after the danger became apparent to him.
There were 108 interrogatories submitted to, and answered by, the jury. The length and multiplicity of said interrogatories not only render it impracticable to set them out in this opinion, but the necessary overlapping of questions, in order to make so many, and the resulting conflict in answers defeat the legitimate and statutory end which interrogatories to the jury are designed to subserve.
Both street car companies and those traveling on city streets in other vehicles must use the streets at all times with a just regard to the rights of the other. Indianapolis St. R. Co. v. O'Donnell (1905), 35 Ind.App. 312, 73 N.E. 163; Howard v. Indianapolis St. R. Co. (1902), 29 Ind.App. 514, 64 N.E. 890; Indianapolis St. R. Co. v. Marschke (1906), 166 Ind. 490, 77 N.E. 945; Cincinnati St. R. Co. v. Snell (1896), 54 Ohio St. 197, 43 N.E. 207, 32 L. R. A. 276; Newark, etc., R. Co. v. Block (1893), 55 N.J.L. 605, 27 A. 1067, 22 L. R. A. 374; Thompson v. Salt Lake, etc., Transit Co. (1898), 16 Utah 281, 52 P. 92, 67 Am. St. 621, 40 L. R. A. 172; Cogswell v. West St., etc., R. Co. (1892), 5 Wash. 46, 31 P. 411; Tacoma R., etc., Co. v. Hays (1901), 110 F. 496, 49 C. C. A. 115; Cincinnati St. R. Co. v. Whitcomb (1895), 66 F. 915, 14 C. C. A. 183; Schilling v. Metropolitan St. R. Co. (1900), 62 N.Y.S. 403.
The driver of an ordinary vehicle can proceed 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 traveler that the motorman does not respect this right, he must stop and give way, if a collision can thus be avoided. Baldwin, American Railroad Law, 418.
"We need scarcely say that to justify the sustaining of such a motion [for judgment on the answers to interrogatories] the answers must make out a case of such antagonism between them and the general finding on some vital point as not to be capable of being removed by any evidence which would have been admissible under the issues." Indianapolis St. R. Co. v. Marschke, supra.
The answers to interrogatories show that there were two car tracks in Illinois street, four feet, eight and one-half inches apart, the rails of which were laid even with the pavement, and that the roadway on each side of said tracks was fourteen feet wide. Cars going south used the west track, and those going north, the east track. Plaintiff was driving a horse and buggy north along the east side of the street, and the car with which he subsequently came in collision was coming from the north. He turned to go across the track, intending to go south on the west side of the street, to a residence at which he wished to stop. There was nothing to prevent his seeing the car, and nothing to prevent the motorman's seeing him. From the time he turned in the direction of the track, until he was struck, he moved about fifteen feet, at the rate of about four miles an hour. The car, when he first began to turn, was about two hundred and twenty-five feet north of him. Illinois street was intersected by Twenty-ninth street at a point about one hundred and sixty feet north of him. The car was running at the rate of twenty miles an hour. When the car was about sixty feet distant he first discovered the rate of speed at which it was going, and acted quickly in attempting to avoid a collision. The answers do not say in what such action consisted. Its particulars are involved in the motion for a new trial, and are shown by the evidence. It is further stated by the answers that when he first saw the car he paid attention to its speed, which he underestimated because of the distance intervening. He did not know it was dangerous to try to cross the track, and was prevented from knowing it because of the distance of the car from him, his position in front of the car, and by misjudging its speed. He could not have known, in time to avoid the accident, that it would be dangerous to try to cross, and that a reasonably prudent man, under the circumstances, could not have avoided the accident.
The charge in the complaint is that the car was run at a high and dangerous rate of speed. The issue thus tendered was an issue for the jury, to be determined by it with reference to existing conditions and circumstances. Citizens St. R Co. v. Hamer (1902), 29 Ind.App. 426, 62 N.E. 658; Chicago City R. Co. v. Robinson (1888), 127 Ill. 9, 18 N.E. 772, 4 L. R. A. 126, 11 Am. St. 87; Thompson v. Salt Lake, etc., Transit Co., supra; Cincinnati St. R. Co. v. Snell, supra; Roberts v. Spokane St. R. Co. (1900), 23 Wash. 325, 63 P. 506, 54 L. R. A. 184; Robbins v. Springfield St. R. Co. (1895), 165 Mass. 30, 42 N.E. 334; Lawler v. Hartford St. R. Co. (1899), 72 Conn. 74, 82, 43 A. 545; Woodland v. North Jersey St. R. Co. (1901), 66 N.J.L....
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