Indianapolis Traction & Terminal Co. v. Hensley

• Decision Date: 25 April 1917
• Docket Number: No. 21847.,21847.
• Citation: 186 Ind. 479,115 N.E. 934
• Court: Indiana Supreme Court
• Parties: INDIANAPOLIS TRACTION & TERMINAL CO. v. HENSLEY.

186 Ind. 479

115 N.E. 934

INDIANAPOLIS TRACTION & TERMINAL CO.

v.HENSLEY.

No. 21847.

Supreme Court of Indiana.

April 25, 1917.

Appeal from Circuit Court, Hancock County; Robert L. Mason, Judge.

Action by Samuel J. Hensley against the Indianapolis Traction & Terminal Company. Judgment for plaintiff, and defendant appeals. Affirmed.

See, also, 105 N. E. 474.

Will H. Latta and Ferd. Winter, both of Indianapolis, Cook & Cook, of Greenfield, and M. E. Foley and Louis B. Ewbank, both of Indianapolis, for appellant. Wymond J. Beckett, of Indianapolis, and Jackson & Sample, of Greenfield, for appellee.

SPENCER, J.

[1][2] Appellee brought this action to recover damages for personal injuries sustained by him in a collision between a chemical fire engine, on which he was at the time employed as the driver and a construction or work car then owned and operated by appellant. The collision occurred at the intersection of Illinois and Maryland streets in the city of Indianapolis at a time when the fire apparatus was being driven south on the west side of Illinois street in response to an alarm of fire. The construction car, which was traveling west on Maryland street, had reached the street intersection ahead of the fire wagon, had there stopped to permit one of the crew to turn the switch, and was proceeding westwardly across Illinois street when the apparatus collided with it, and appellee was thrown to his injury. The above facts are not disputed by either of the parties, but in determining the issues of law presented by this appeal other circumstances which were in evidence before the jury must be considered. A street sweeper, who was at work near the scene of the accident, testified that when he heard the fire apparatus coming south on Illinois street and noticed the construction car approaching the crossing, he waived his broom before the car as a signal to stop, but the motorman was looking back and talking to some one in the car, and the witness was unable to get his attention; that the rotary gong on the fire apparatus was sounding, so that it could be heard for the distance of a square or more; and that several bystanders shouted to the motorman of the construction car, but he did not appear to heed their warning. The substance of this testimony is corroborated by several other witnesses, and tends to show, either that the motorman deliberately ignored the efforts of bystanders to warn him of the approaching fire engine, or that he was not giving proper attention to his surroundings as he reached the street crossing. The latter conclusion, at least, is strengthened by the motorman's admission that another piece of fire apparatus had passed him just one square east of the point of collision, and that he did not observe in what direction it went on reaching Illinois street. This circumstance was express notice to the motorman that the fire department was responding to an alarm which required its use of the streets at or near the point of collision, and, coupled with the fact that other street cars on Illinois street cut off his view to the north, was proper to be considered by the jury in determining the degree of care which he used under all the circumstances.

As to whether appellee was guilty of contributory negligence, it must be conceded that he was driving his team at a rapid rate of speed through the city streets in response to the alarm of fire, but there is evidence also that his horses were under control as he approached the intersection of Maryland and Illinois streets, and that as soon as he saw the construction car cross his path from behind another street car, which was standing on Illinois street, he made every effort to turn his team west into Maryland street and avoid a collision, but was then unable to do so. Furthermore, as will hereinafter appear, appellee's conduct is to be measured in the light of certain privileges that were his at the time under and by virtue of two ordinancesof the city of Indianapolis, which were pleaded specially in the second paragraph of complaint and introduced in evidence at the trial. One of these ordinances granted “the privilege of the streets of said city” to the fire department, while in the discharge of its duty, on condition that certain regulations were observed as to the equipment of fire engines with warning gongs and as to the use of the same when the apparatus should be traveling at a rapid rate of speed. The other ordinance provided, in part, that “should any person or persons hinder or obstruct any city fire company or hook and ladder company, or any member thereof, from freely passing along the streets of the city, to or from a fire,” he or they should be fined, etc.

Relative to the first of these ordinances the trial court, in instruction 6 given at the request of appellee, told the jury, in substance, that the violation of a city ordinance resulting in injury to another is negligence per se, and that if it should appear from the evidence that the ordinance in question was in force at the time of appellee's injury and its provisions were then being observed by the members of the fire department, and that appellee was injured, without his fault, as a proximate result of appellant's failure to grant him the privilege of the streets, in violation of said ordinance, then the verdict should be for appellee.

The objections urged against this instruction are: (1) That it erroneously construes the ordinance as imposing a duty on appellant; and (2) that it improperly authorized the jury to determine as a matter of law what acts would constitute a violation of said ordinance, as well as to pass on the issue of appellant's guilt in the commission of such acts. As against the ordinance itself it is suggested that its purpose is not to grant to any one a superior right of way over public streets, or to place a duty on other travelers with regard thereto, but only to exempt firemen from the operation of speed ordinances and, possibly, traffic ordinances. It must be borne in mind, however, that the decided weight of authority is to the effect that ordinances limiting or regulating the speed of travel through city streets are not applicable to vehicles of the fire department on their way to fires, even without express provision to that effect. City of Kansas City v. McDonald, 60 Kan. 481, 483, 57 Pac. 123, 45 L. R. A. 429;State v. Sheppard, 64 Minn. 287, 67 N. W. 62, 36 L. R. A. 305;Farley v. Mayor, etc., 152 N. Y. 222, 227, 46 N. E. 506, 57 Am. St. Rep. 511;Toledo R., etc., Co. v. Ward, Adm'x, 25 Ohio Cir. Ct. R. 399, 404;Chicago City R. Co. v. McDonough, 125 Ill. App. 223, 237.

To adopt that construction of the ordinance which is suggested above would be to say that its passage was a useless act. Furthermore, the contention that such construction of the ordinance is made imperative by the fact that it prescribes no penalty for its violation is not properly presented by the record as it comes to this court. Although cases may be found which hold that a municipal ordinance which imposes obligations, but provides no penalty for its violation, is void, the trend of modern decisions is toward the rule that the penalty, though usually and more properly fixed by the ordinance itself, may, in certain instances, be supplied or more clearly defined by reference to general or statutory provisions of the law applicable to the subject-matter, and, in any event, there can be no doubt that the penalty may be prescribed in a section of the ordinance other than the one which declares the offense. Cooper v. City of Gadsden, 10 Ala. App. 609, 612, 65 South. 715;Blake v. City of Pleasantville, 87 N. J. Law, 426, 429, 95 Atl. 113; Brunker v. Corporation Tp., 22 Ont. 121, 124; Brown v. City of Toledo, 7 Ohio N. P. 435.

[3][4] On the other hand, the general rule is well settled that courts do not take judicial notice of ordinances of incorporated towns, and, where suit is predicated on such an ordinance, so much of the same as relates to the action must be made a part of the complaint. Clevenger v. Town of Rushville, 90 Ind. 258, 260. Similarly, matters of defense which touch the scope of such ordinance or its sufficiency as a foundation for the action must first be specially presented in the trial court by motion, demurrer, or answer. Since we do not know judicially whether another section of the ordinance in question prescribes a penalty for its violation, we may not pass on the point suggested by counsel, but need only determine whether the construction placed on that ordinance by the trial court in instruction 6 may properly be sustained under the facts shown by the record.

[5] The instruction, in its phraseology, follows closely the language of the ordinance, but, taken as a whole, clearly interprets its provisions as granting to the fire department a right of way over the city streets when responding to an alarm of fire. While this purpose might readily have been stated in more definite terms, the word “privilege” is one of broad meaning, and, when considered in connection with the other provisions of the ordinance, so far as they appear, it is open to the interpretation given to it by the trial court. In fact, appellant's instruction 3, which was given to the jury, contains a tacit admission that the ordinance might operate as a grant to the fire department of a superior right of way, and for the purposes of this appeal, at least, it must be so construed. That construction leads to the obvious corollary that the ordinance places on other uses of the street a duty to yield the same for the passage of fire apparatus, and a violation of that duty is negligence per se. Public Utilities Co. v. Handorf, 112 N. E. 775, 778;Pittsburgh, etc., R. Co. v. Lightheiser, 168 Ind. 438, 453, 78 N. E. 1033;McBride v. Des Moines City R. Co., 134 Iowa, 398, 109 N. W. 618;Geary v. Metropolitan St. R. Co., 84 App. Div. 514, 82 N. Y. Supp. 1016;Warren v. Mendenhall, 77 Minn. 145, 79...