Indianapolis Traction & Terminal Company v. Kidd
| Decision Date | 27 November 1906 |
| Docket Number | 20,850 |
| Citation | 79 N.E. 347,167 Ind. 402 |
| Court | Indiana Supreme Court |
| Parties | Indianapolis Traction & Terminal Company v. Kidd |
From Hamilton Circuit Court; Ira W. Christian, Judge.
Action by Lulu Kidd against the Indianapolis Traction & Terminal Company. From a judgment on a verdict for plaintiff for $ 3,500, defendant appeals. Transferred from Appellate Court under § 1337u Burns 1901, Acts 1901, p. 590.
Affirmed.
F Winter, W. H. Latta and L. H. Oberreich, for appellant.
M. A Ryan and Gavin & Davis, for appellee.
This is an action for damages resulting to appellee from appellant's alleged negligence in running one of its cars without warning, at a high rate of speed, against and over her while walking along its track.
A reversal of the judgment is sought for the reasons: (1) That the complaint does not state facts sufficient to constitute a cause of action; (2) that the court erred in overruling appellant's motion for judgment in its favor on the answers of the jury to interrogatories; (3) the court erred in overruling appellant's motion for a new trial.
The complaint was not challenged in the trial court. It is contended that the complaint upon its face discloses an assumption of the risk and contributory negligence on the part of the appellee, notwithstanding the allegations that appellee exercised due care and precaution for her safety, and that she was without fault. It is well settled that when a complaint is attacked for the first time in this court, it will be upheld if the facts alleged are sufficient to bar another suit for the same cause of action. We do not find the suggested defects to be real, and any want of certainty in the pleading was cured by the evidence and verdict, and upon numerous decided cases we accordingly hold the complaint sufficient as against the present assault. Lengelsen v. McGregor (1904), 162 Ind. 258, 67 N.E. 524; City of South Bend v. Turner (1901), 156 Ind. 418, 54 L. R. A. 396, 60 N.E. 271; Shoemaker v. Williamson (1901), 156 Ind. 384, 59 N.E. 1051; Xenia Real Estate Co. v. Macy (1897), 147 Ind. 568, 47 N.E. 147; Citizens' St. R. Co. v. Willoeby (1893), 134 Ind. 563, 33 N.E. 627; Loeb v. Tinkler (1890), 124 Ind. 331, 24 N.E. 235; Peters v. Banta (1889), 120 Ind. 416, 22 N.E. 95; Smith v. Smith (1886), 106 Ind. 43, 5 N.E. 411.
In answer to interrogatories, the jury found the following facts: At the time of the accident appellant had a standard-gauge, double-track street railroad on East Tenth street in the city of Indianapolis, extending two or three squares to the east of the place of the accident, and for a long distance westward, the tracks being five feet apart. The street was paved with brick. East-bound cars ran on the south track and west-bound cars, on the north track. Appellee had lived in the neighborhood of the place of the accident for four years, and was familiar with the location of the tracks and the manner in which cars were operated thereon. The accident occurred in daylight, on a clear day, and appellee at the time was forty-seven years of age, possessed of ordinary intelligence, of good eyesight and hearing, and of the use of all her faculties and powers of locomotion. Appellee lived on the south side of Tenth street and her daughter lived on the same side east of her residence. Appellee started on foot to her daughter's home, and had walked about five hundred feet along appellant's track eastward before the accident occurred. The car could have been seen by appellee, had she looked, for a distance of from one-quarter to one-half mile before it reached her, and she could have gotten out of the way by stepping five or six feet to either side, had she known the car was approaching. There was no evidence to show whether any noise was made by the approaching car, or whether appellee with ordinary care could have heard it approach. Appellant's tracks had been swept practically clean of ice and snow, and on the south side of the tracks there was at the time and place of the accident from six to fourteen inches of melting snow and ice, and about the same depth between the tracks. Appellee's view westward of the place of the accident for 1,000 feet was unobstructed, and by looking westward she could have seen the approaching car when that distance away, and for a distance of one hundred feet she could at any point have stepped out of the way of the car had she known it was approaching, but the noise of a west-bound car prevented her from hearing its approach. On entering upon the tracks and again after she had proceeded about half a square appellee looked westward to ascertain whether a car was coming, but no car was then in sight. The car was operated by electricity and was traveling at a rate of from twenty to twenty-five miles per hour, and the motorman did not see appellee, or know that she would not leave the track, until he was within ten feet of her, and that, under existing conditions, the car could have been stopped within a distance of from one hundred fifty to one hundred seventy-five feet. Appellee looked and continuously listened, and used ordinary care to avoid the accident.
Appellant's counsel argue that judgment should have been rendered in favor of appellant upon these facts, notwithstanding the general verdict, because appellee is shown to have been guilty of contributory negligence. This contention appears to be predicated upon a misconception of the rights of the respective parties to the use of the street. It is a familiar principle, frequently reiterated by the courts, that street railway companies have no superior and predominant right to the use of the streets upon which their tracks are located over the rights of other users, except the right of way when they require it. Indianapolis St. R. Co. v. Darnell (1904), 32 Ind.App. 687, 68 N.E. 609; Indianapolis St. R. Co. v. O'Donnell (1905), 35 Ind.App. 312, 73 N.E. 163; Buttelli v. Jersey City, etc., R. Co. (1896), 59 N.J.L. 302, 304, 36 A. 700; Baltimore, etc., R. Co. v. Cooney (1898), 87 Md. 261, 266, 39 A. 859; Rapp v. St. Louis Transit Co. (1905), 190 Mo. 144, 161, 88 S.W. 865.
The highways are laid out for passage, and each passer, in a vehicle or on foot, has a right of passage over the same, subject to the condition that he does not unnecessarily interfere with the lawful exercise of a similar right by others. Pedestrians have a right to use any part of such highways, but the question whether a particular use is such as a reasonably prudent person would make must depend upon the attendant circumstances. When a certain portion of the highway has been paved as a sidewalk, or otherwise reserved for the exclusive use of foot passengers, and the same is unobstructed and in suitable condition for such use, it may not be prudent to walk in the roadway set apart for the use of vehicles. In considering the question of appellee's alleged contributory negligence, due regard for the reciprocal rights, duties, and obligations of appellant must be observed. Appellant had no right to exclude appellee from its track upon the street, but had the right merely to require her to remove therefrom when she ascertained or was notified that the same was needed for the passage of one of its cars. It appears, from the facts specially found by the jury, that the street along which appellee was passing was covered with melting snow and ice to a depth of from six to fourteen inches, except the space between the rails of appellant's tracks, which was paved with brick and was practically free from all obstructions. This condition of the street explains appellee's use of the track. She was required to use ordinary care for her safety, and the duty which she owed to the company was to vacate the track when apprised that the same was required for the passage of a car. It must be borne in mind, as against this motion, that the jury were authorized to find that she had a right to assume that appellant's cars would not be run at an excessive rate of speed, and that she was not required to anticipate that a car upon a straight track, in broad daylight, would run her down from the rear without any warning. Indianapolis St. R. Co. v. Marschke (1906), 166 Ind. 490, 77 N.E. 945; Indianapolis St. R. Co. v. O'Donnell, supra; Memphis St. R. Co. v. Haynes (1904), 112 Tenn. 712, 81 S.W. 374, 379; Polacci v. Interurban St. R. Co. (1904), 90 N.Y.S. 341; Kolb v. St. Louis Transit Co. (1903), 102 Mo.App. 143, 149, 76 S.W. 1050.
Appellant's servants in charge of the operation of its cars were required to exercise diligent and constant watchfulness for persons who might be upon or approaching the track. Such servants are required to take notice of obvious obstructions to the ordinary and free use of the street. The drivers of such cars are chargeable only with the exercise of ordinary care for the safety of other users of the street but ordinary care in law implies a high degree of watchfulness and vigilance when propelling a car at a speed of from twenty to twenty-five miles per hour through the streets of a populous city, where persons on foot and in vehicles are constantly passing and repassing, including the aged, infirm, and crippled, as well as children, thoughtless and wanting in prudence and discretion. The accident to appellee occurred in daylight and at a point where the track from the west was straight, and she could have been seen by the most casual attention on the part of the motorman when the car was 1,000 feet distant. Appellee looked westward when she entered upon the track, and again when she had proceeded half a square on her journey, but no car was then in sight. She listened continuously as she advanced, but failed to discover the approach of the car, and, under the circumstances...
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