Indianapolis Traction & Terminal Co. v. Croly, No. 7,363.

• Docket Nº: No. 7,363.
• Citation: 96 N.E. 973, 54 Ind.App. 566
• Case Date: December 22, 1911
• Court: Court of Appeals of Indiana

54 Ind.App. 566
96 N.E. 973

INDIANAPOLIS TRACTION & TERMINAL CO.
v.
CROLY.

No. 7,363.¹

Appellate Court of Indiana.

Dec. 22, 1911.

Appeal from Circuit Court, Morgan County; Joseph W. Williams, Judge.

Action by Alpha C. Croly against the Indianapolis Traction & Terminal Company. From a judgment for plaintiff, defendant appeals. Reversed, and new trial granted.

[96 N.E. 976]

F. Winter, Oscar Matthews, S. C. Kivett, and W. H. Latta, for appellant. George W. Grubbs and George W. Galvin, for appellee.

LAIRY, J.

The appellee in this case, a child between 11 and 12 years of age, was injured by being run over by appellant's street car. The complaint charges appellant was negligent in running its car at a high and dangerous rate of speed through a populous part of the city, and that no gong was sounded or other warning given of the approach of the car to the place where plaintiff was injured. It is further alleged that the motorman in charge of said car did not have the same under proper control. The issue was formed by an answer in general denial. The case was submitted to a jury for trial, and a verdict was returned in favor of the plaintiff. The court overruled the motion of appellant for a new trial and rendered judgment in favor of appellee. The only error assigned and not waived is the action of the court in overruling appellant's motion for a new trial.

[1] The motion for a new trial was based on several causes. It is first argued that the motion should have been sustained upon the ground that the evidence is not sufficient to sustain the verdict of the jury. In deciding this question, we cannot weigh conflicting evidence, but can consider only the evidence most favorable to appellee. If this evidence, when considered apart from all other evidence in the case, is sufficient to sustain the verdict upon every material point, this court will not reverse the judgment on the evidence.

[2] There is no claim that the evidence is not sufficient to sustain the charge of negligence as set out in the complaint; but it is contended that the evidence without dispute shows that appellee was guilty of contributory negligence. This is a defense, and the burden is on the defendant to establish it by a preponderance of the evidence. In order to make out a case of contributory negligence, two elements must be established by requisite proof: First, it must be established that the plaintiff, under the circumstances, did not use due care for his own safety; and, second, that such failure to use due care proximately and directly contributed to produce the injury.

On the subject of the care used by the plaintiff just before her injury, the evidence most favorable to her tends to prove the following facts: Plaintiff was between 11 and 12 years of age and had been warned by her married sister and also by her mother to look out for cars and keep out of their way. She lived on the north side of the street and almost opposite the point where she was injured, and knew that the cars went by in the street about every 10 minutes, and knew that the cars would hurt her if they ran over her or knocked her down. The accident occurred about 50 feet east of the curve at the corner of Roosevelt avenue and Lewis streets. Just before the accident, plaintiff was on the south side of Roosevelt avenue and started to go across the street to her home on the north side thereof, moving in a northwesterly direction and proceeding in a fast walk. At the time there was a Brightwood car on the bend at Lewis street going east toward the city, and a Columbia street car was going west on Roosevelt avenue. In crossing, plaintiff walked across the south street car track about 15 feet in front of the Brightwood car and stepped upon the north track about 4 feet in front of the Columbia street car, which struck the plaintiff and inflicted the injury for which she sues. The street was open and straight for two blocks in the direction from which the Columbia street car approached. Plaintiff testified that she looked in the direction from which the Brightwood car was approaching and saw no car; she also looked in the opposite direction and saw no car; that she saw no car at all before she was struck.

[3] If the person injured had been a person of mature age, we would have no hesitancy in holding that her conduct in stepping upon the track of a street car company immediately in front of an approaching car, without observing its approach, as shown by the evidence, was such as to show a want of proper care on her part; but, where the plaintiff is an infant of tender years a different rule applies.

[4] A child of very tender years is held to be non sui juris as a matter of law. Such

[96 N.E. 977]

a child is incapable of exercising any care or discretion, and contributory negligence cannot be imputed to it. Donahoe v. Wabash, etc., R. Co., 83 Mo. 560, 53 Am. Rep. 594; Frick v. St. Louis, etc., R. Co., 75. Mo. 595; Smith v. Atchison, etc., R. Co., 25 Kan. 738. A child which has arrived at a sufficient age that it may be presumed in law to be capable of exercising some judgment and discretion is required to use such reasonable care for its own safety as ought ordinarily to be expected from children of like age, knowledge, judgment, and experience. Louisville, etc., R. Co. v. Sears, 11 Ind. App. 654, 38 N. E. 837;Shirk v. Wabash R. Co., 14 Ind. App. 126, 42 N. E. 656;Cleveland, etc., R. Co. v. Miles, 162 Ind. 646, 70 N. E. 985.

[5] When a court is in a position to say, from the undisputed evidence that the child in question was of sufficient age, knowledge, and experience, that it was capable of understanding and appreciating certain dangers and was capable of using certain precautions to avoid them, and, when it can also say from the undisputed evidence that such child did not use ordinary care and caution for a child of its age and capacity, then such court is in a position to declare as a matter of law that such child did not use reasonable care.

[6] The evidence in this case shows without dispute that the age, knowledge, and experience of the plaintiff was such that she understood and appreciated the danger of being struck and injured by street cars in crossing the tracks. She was therefore capable as a matter of law of using some care in observing the approach of such cars and keeping out of their way. If it appeared from the evidence that she used some care in this respect, it would be for the jury to say whether the care used was such as might be ordinarily expected from a child of her age and experience; but when it appears from the undisputed evidence that she used no care in this respect, and where no excuse is shown for a failure to use the care of which she was capable, the question is one of law for the court. Placing the case in the most favorable light for the plaintiff, she walked across the street looking straight ahead of her, and walked upon the track at a point three or four feet in front of the car that struck her. True, she says that she looked up and down the street, and that she saw no car; but the physical facts remain that the car was there within a few feet of her at the time she stepped upon the track, that it was daylight, and that her view was unobstructed. If she had seen the car and had misjudged its distance or speed, this might be attributed to her immature judgment. If she had seen the approach of the Brightwood car, and this had distracted her attention in that direction, the fact might have been considered by the jury as an excuse for a failure to use care to observe the approach of a car from the opposite direction; but, where it appears that nothing obstructed her view or distracted her attention, we see no excuse for her failure to use such care as she was capable of exercising to observe the approach of a car before stepping upon the track. In our judgment the undisputed evidence shows that the plaintiff failed to use due care in view of her age and experience. Ryan v. La Crosse City R. Co., 108 Wis. 122, 83 N. W. 770;Stackpole v. Boston Elevated R. Co., 193 Mass. 562, 79 N. E. 740;Sheets v. Connelly R. Co., 54 N. J. Law, 518, 24 Atl. 483.

[7] We have held in this case that the undisputed evidence shows that the plaintiff failed to use due care for her own safety in approaching and entering upon the tracks of the defendant in such a way as to expose herself to danger from a moving car; but this does not amount to a finding that she was guilty of contributory negligence. Before it can be held as a matter of law that she was guilty of contributory negligence, it must further appear that the second essential element of contributory negligence was present, namely, the causal connection between the want of due care on the part of the plaintiff and her injury. Where the evidence shows without dispute, as it does in this case, that a collision actually occurred by reason of the plaintiff being in a place of threatened danger, to which her own negligence has exposed her, the court will infer that the injury occasioned by the collision was the proximate result of such want of due care on her part, unless there is some evidence in the record to rebut the presumption as to such causal connection. If, however, there is evidence in the record which tends to rebut the presumption and from which the jury may have found that such want of due care on her part was not the proximate cause, but only the remote cause, of the injury, then the verdict can be upheld notwithstanding the failure of the plaintiff to use due care. Under such a state of the evidence, contributory negligence cannot be declared by this court as a matter of law, for the reason that there is a conflict in the evidence as to the second essential element of contributory negligence.

When the evidence is of such a character that it tends to show that the want of due care on the part of the plaintiff was not the proximate cause of the injury, but only the remote cause, or only gave rise to...