Louisville & S.I. Traction Co. v. Lottich
| Decision Date | 24 November 1914 |
| Docket Number | No. 8468.,8468. |
| Court | Indiana Appellate Court |
| Parties | LOUISVILLE & S. I. TRACTION CO. v. LOTTICH. |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Floyd County, William C. Utz, Judge.
Action by Harry P. Lottich against the Louisville & Southern Indiana Traction Company. Judgment for plaintiff, and defendant appeals. Affirmed.Geo. H. Voight, of Jeffersonville, for appellant. Charles D. Kelso, of New Albany, for appellee.
This is a suit for damages for personal injuries. The complaint is in one paragraph, which was answered by a general denial. A trial by jury resulted in a verdict in favor of appellee for $1,500. With their general verdict the jury returned answers to certain interrogatories. The court overruled appellant's motion for judgment on the answers to the interrogatories and its motion for a new trial. Judgment was rendered on the verdict. The ruling on each of said motions is called in question by the assignment of errors.
The complaint alleges, in substance, that on the 21st day of December, 1911, the defendant was and now is an interurban street railroad company, organized under the laws of Indiana, engaged in operating street cars on and over its tracks on Main street in the city of New Albany; that on said day plaintiff was riding on the seat of a two-horse wagon and driving eastwardly on the south side of said street; that, when he arrived at the intersection of Lower Fifth and Main streets, he turned from the south side of said Main street across said car tracks for the purpose of going north on Lower Fifth street; that, when the rear end of the wagon had almost crossed over and cleared the tracks, the defendant carelessly and negligently approached said wagon from the rear with one of its cars and recklessly, carelessly, and negligently ran said car into and against the rear of said wagon, thereby knocking the plaintiff off the seat and down on the doubletrees of said wagon; that, by reason of such collision, his horses became frightened and ran away and kicked plaintiff on the head; that, as said car approached the crossing of said streets, the same was not under the control of the motorman operating the same, but was carelessly and negligently run by said motorman at a high and excessive rate of speed, to wit, 15 miles an hour, in violation of an ordinance of said city, then in full force and effect, which prohibited the running of street cars in said city at a speed of over 10 miles per hour; that said motorman, as he approached plaintiff's vehicle, was engaged in conversation with the conductor of said car and was not vigilantly watching ahead for the purpose of preventing accidents at the intersection of said streets; that, as a result of the collision of said car with said wagon as aforesaid, “plaintiff's head was battered, bruised, and cut, his right side battered, bruised, and injured, the right kneecap bruised and injured, the left knee and ankle bruised, cut, strained, and twisted, and his back wrenched and strained.”
Appellant contends that the court erred in overruling its motion for judgment on the answers to interrogatories notwithstanding the general verdict. By their answers to interrogatories the jury, in substance, found that on the day in question appellee was driving a two-horse team, in a trot, eastwardly along Main street in the city of New Albany; that he drove along the south side of the street railway tracks located in the center of said street, which was 60 feet wide and ran practically in a straight course; that the north wheels of the wagon were from two to eight feet from the south rail of the track; that, as he reached the intersection of Fifth and Main streets, he drove across the track without stopping his team; that, at the time appellee was attempting to cross said track, one of appellant's cars was approaching from the west; that said car was running at the rate of 12 miles per hour while approaching Fifth street and when it struck the left hind wheel of said wagon; that, when appellee started to cross said track, the car was 45 feet away; that the motorman attempted to stop said car as the wagon crossed the track; that appellee did not see the approaching car before his team started to cross the track nor before he crossed the track; that before he started across or when he crossed said track he did not know that a car was approaching Fifth street; that there was nothing to obstruct the view of appellee down Main street; that a person then and there seated on a wagon on such street could see an approaching street car three blocks away; that appellee was sitting on the front seat of the wagon; that there were no other vehicles in the street and nothing on the wagon to obstruct his view; that plaintiff was 61 years old, and had good eyesight and good hearing; that he was experienced in driving horses, and his team was gentle, and he had it under control up to the time the car struck the wagon; that the accident occurred at 4:33 o'clock in the afternoon; that said car could not have been stopped between the time the horses started to go across said track and the time it struck appellee's wagon.
Appellant concedes that the answers show that its car which struck appellant's wagon was running at a speed prohibited by the ordinance, but it contends that they also conclusively show that appellee was guilty of negligence which contributed to his injury.
[1] The general verdict is a finding that appellant was guilty of the negligence, which was the proximate cause of appellee's injury, and that he was free from negligence contributing thereto.
[2] In determining the question on the motion for judgment on the answers to the interrogatories, every reasonable presumption is indulged in favor of the general verdict, and judgment can only be given on the answers to the interrogatories, when they are in irreconcilable conflict therewith. If there is apparent conflict, the judgment on the general verdict will prevail, if the conflict between the answers and the general verdict may be removed by any possible evidence that might properly be given under the issues of the case.
[3] The answers to the interrogatories show that the collision which resulted in the injuries complained of occurred at 4:33 o'clock in the afternoon on the 21st day of December, 1911. This court will take judicial notice that on that day the sun set at 4:23 o'clock p. m. Dayton Traction Co. v. Marshall, 36 Ind. App. 491, 75 N. E. 824;Cincinnati, etc., R. Co. v. Worthington, 30 Ind. App. 663, 65 N. E. 557, 66 N. E. 478, 96 Am. St. Rep. 355.
[4] It thus appears that the collision occurred after sunset. Evidence was admissible, under the issues, to show that it was cloudy and too dark for appellee to see the car, and that there were no artificial lights on the street, also to show that on account of the noise of the wagon in which he was riding, or other noises, he was unable to hear the noise of the approaching car, also that, at some time before attempting to cross, he did look to the rear for an approaching car, and did not see it, nor learn that a car was approaching. Furthermore the findings, which show that there were no obstructions to appellee's view, were in response to questions which, when reasonably construed, must be held to have called the attention of the jury to obstructions of a physical nature and not to darkness.
[5] Appellee's rights and those of appellant upon the street were equal, and each was bound to use ordinary care to avoid a collision. Appellee was driving along the street ahead of the car, and the street and crossing, where he attempted to pass over appellant's tracks, were free from obstructions. He did not see nor hear the car that struck his wagon or know of its approach when he drove across the tracks. In attempting to cross over under such circumstances, he may or may not have exercised the care of an ordinarily prudent man under similar conditions, but we cannot declare, as a matter of law, that he was guilty of contributory negligence in attempting to cross the tracks as he did. Leaving out of consideration the possible evidence that might be admitted under the issues in aid of the general verdict as against the answers to the interrogatories, and giving full effect to the finding that a man, situated and circumstanced as appellee was at the time he attempted to cross the tracks, could have seen a car three blocks away, still we cannot declare, as a matter of law, that he was guilty of contributory negligence if he failed to ascertain that a car was approaching from the rear so near as to make it dangerous for him to attempt to cross the track, likewise if he looked and saw the car and miscalculated its distance or the speed with which it was approaching.
[6] The findings do not conclusively show a failure on the part of appellee to use any care, but, on the contrary, show that he did exercise some care when he undertook to cross appellant's tracks. Where some care is exercised, it is a question of fact for the jury to determine whether such care was ordinary care, under all the facts shown by the evidence. C., C., C. & St. L. Ry. Co. v. Nichols, 52 Ind. App. 349-354...
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