Indianapolis Street Railway Company v. Marschke

• Decision Date: 18 May 1906
• Docket Number: 20,830
• Citation: 77 N.E. 945,166 Ind. 490
• Parties: Indianapolis Street Railway Company v. Marschke
• Court: Indiana Supreme Court

77 N.E. 945

166 Ind. 490

Indianapolis Street Railway Company v. Marschke

No. 20,830

Supreme Court of Indiana

May 18, 1906

From Superior Court of Marion County (20,706); Vinson Carter Judge.

Action by Bertha A. Marschke against the Indianapolis Street Railway Company. From a judgment on a verdict for plaintiff for $ 950, defendant appeals. Transferred from Appellate Court under subd. 2, § 1337j Burns 1901, Acts 1901, p. 565 § 10.

Affirmed.

F Winter, for appellant.

P. W. Bartholomew and R. F. Stuart, for appellee.

OPINION

Gillett, C. J.

Action for personal injury. There was a verdict and a judgment for appellee.

The principal question in the case is whether the evidence shows that appellee was guilty of contributory negligence. Upon some points there was a sharp conflict in the testimony, but assuming, as we must, that the jury followed the evidence which was most favorable to appellee, the following may be said to be the facts: About 8 o'clock a. m. of a day in August, appellee was driving in a single buggy to the southeast, down one of the approaches of the Virginia avenue viaduct, in the city of Indianapolis. The driveway at that place is fifty feet wide, and there is a street car track on either side of the center of the street. Four lines of cars used these tracks. Virginia avenue, Louisiana street and New Jersey street intersect on said approach, about a block and a half from the crown of the viaduct. Appellee was driving on the southwest side of the street. Her horse was going at an ordinary trot. She knew that cars frequently passed along said tracks. At a point about two hundred feet from said street intersection she turned toward the track nearest her, for the purpose of passing a heavy wagon that was slowly moving in the direction in which she was going. Appellee knew that the southeast-bound electric cars used said track, and as she turned in that direction she glanced back up the track, and also listened. She did not hear a gong, nor did she hear a car moving on the viaduct. She continued to drive near the southwest rail of said track until she was opposite the wagon, and at about the center of the intersection of said streets, when the running-board of appellant's street car, which had approached her from the rear, came into contact with the left hind wheel of her buggy, throwing her out and injuring her. The car was running, according to the testimony of some of the witnesses, at the rate of about twenty miles per hour, and there was no gong sounded.

From side to side a city street belongs to the public. State v. Berdetta (1880), 73 Ind. 185, 38 Am. Rep. 117. A permission granted by the authorities to an electric railroad company to lay tracks on a public street and operate electric cars along the same, does not amount to an abandonment in favor of the company of the space occupied by the tracks. As the cars cannot turn out, and as their speed is usually greater than that of many other conveyances, they are entitled to the precedence which the necessity of the situation requires, but their movements should be regulated with a due regard to the situation of the drivers of other vehicles. Commonwealth v. Temple (1859), 14 Gray 69, 78; Vincent v. Norton, etc., St. R. Co. (1901), 180 Mass. 104, 61 N.E. 822; Benjamin v. Holyoke St. R. Co. (1893), 160 Mass. 3, 35 N.E. 95, 39 Am. St. 446; Marden v. Portsmouth, etc., St. R. Co. (1905), 100 Me. 41, 60 A. 530, 69 L. R. A. 300; Greene v. Louisville R. Co. (1905), 27 Ky. Law 316, 84 S.W. 1154; Baldwin, American Railroad Law, 421. It is a mistake to assume that the "look-and-listen" rule, which has found such universal acceptance with the courts in stating the quantum of care which a traveler crossing a steam railroad should ordinarily exercise, applies in all of its vigor to persons proceeding in vehicles along electric railroads in public streets. While the electric street car is expected, over much of its route, to move with comparative swiftness, yet it is a vehicle of the street, and the motorman is expected to exercise reasonable care in dealing with the various conditions with respect to travel that confront him. As stated by Mr. Justice Holmes, in White v. Worcester, etc., St. R. Co. (1896), 167 Mass. 43, 44 N.E. 1052: "Electric cars are far more manageable, and more quickly stopped, than trains upon steam railroads. Their tracks are in the highway, where all vehicles have a right, not merely to cross, but to travel. In view of the inability of the cars to leave their tracks, it is the duty of free vehicles not to obstruct them unnecessarily, and to turn to one side when they meet them, but subject to that and to the respective powers of the two, a car and a wagon owe reciprocal duties to use reasonable care on each side to avoid a collision."

We have not here to deal with a case involving a sudden and unexpected turning of a vehicle onto the track, coupled with a failure to look and listen, as in Seele v. Boston, etc., St. R. Co. (1905), 187 Mass. 248, 72 N.E. 971. If the collision complained of by appellee had occurred just as she turned toward the track, a different question would have been presented, but for some distance she was driving very near the track, and the jury was authorized to conclude that her purpose to go around the wagon should have been apparent to the motorman. See Goodson v. New York City R. Co. (1905), 94 N.Y.S. 10.

While we recognize that the right of the company is superior in point of precedence, that the driver should not obstruct the operation of the cars, and that a person who without care drives along the track may subject himself to the charge of contributory negligence, yet where, as here, there was an excuse for driving near the track, and some degree of care exercised in respect to looking and listening a short time before the injury, and with the burden resting on appellant to show contributory negligence, we hold that it is not error to submit the question to the jury. It must not be forgotten that a person driving along a street railroad track in broad daylight has a right, at least in some degree, to indulge in the supposition that if a car is approaching from the rear a proper lookout is being maintained thereon, and that ordinary care not to injure him will be exercised. Greene v. Louisville R. Co., supra; Ablard v. Detroit United Railway (1905), 139 Mich. 248, 102 N.W. 741; Memphis St. R. Co. v. Haynes (1904), 112 Tenn. 712, 81 S.W. 374. And see Stringer v. Frost (1888), 116 Ind. 477, 2 L. R. A. 614, 9 Am. St. 875, 19 N.E. 331.

As is well understood, where a question as to negligence or contributory negligence is presented in such a way that jurors, as reasonable men, might fairly differ as to the deduction to be drawn on that subject, the question becomes a mixed one of law and fact; and so here, in view of the circumstances, and bearing in mind that the burden was on appellant to show contributory negligence, we are of opinion that it cannot be said, as a matter of law, that such defense was made out. Indianapolis St. R. Co. v. Schmidt (1905), 35 Ind.App. 202, 71 N.E. 663; Vincent v. Norton, etc., St. R. Co., supra; Marden v. Portsmouth, etc., St. R., supra; Macon R., etc., Co. v. Barnes (1904), 121 Ga. 443, 49 S.E. 282; Greene v. Louisville R. Co., supra; Ablard v. Detroit United Railway, supra; Rouse v. Detroit Electric Railway (1904), 135 Mich. 545, 98 N.W. 258, 100 N.W. 404; Memphis St. R. Co. v. Haynes, supra. And see Evansville St. R. Co. v. Gentry (1897), 147 Ind....