Marchal v. Indianapolis Street Railway Co.

• Decision Date: 20 December 1901
• Docket Number: 3,521
• Citation: 62 N.E. 286,28 Ind.App. 133
• Parties: MARCHAL v. INDIANAPOLIS STREET RAILWAY COMPANY
• Court: Indiana Appellate Court

62 N.E. 286

28 Ind.App. 133

MARCHAL v. INDIANAPOLIS STREET RAILWAY COMPANY

No. 3,521

Court of Appeals of Indiana

December 20, 1901

From Marion Superior Court; J. M. Leathers, Judge.

Action by Frederick Marchal against the Indianapolis Street Railway Company for damages. From a judgment for defendant on demurrer to complaint, plaintiff appeals.

Reversed.

J Collier, for appellant.

F Winter and C. Winter, for appellee.

OPINION

COMSTOCK, C. J.

Appellant instituted this action against the appellee corporation to recover damages resulting to appellant's property at a crossing in Indianapolis, by reason of the alleged negligence of appellee's servants in the operation of its street cars. The complaint was in two paragraphs, designated, respectively, as an amended complaint and as the second paragraph of complaint, to each of which a demurrer for want of facts was sustained. Appellant refusing to plead further, judgment was rendered in favor of appellee for costs.

The only question here is the sufficiency of the complaint. For the consideration of its sufficiency, the following portion only of the amended complaint need be set out: "And plaintiff says that, as he approached a point where said North Illinois street is crossed by West Twenty-eighth street, over which point said defendant maintains and operates its said lines of electric street railway, one of the defendant's electric cars was traveling south on the west track, and at and crossing over the intersection of said streets, and at the same time one of the defendant's electric cars was traveling north on the east track, and had just passed over said intersection; that as the car on the east track traveling north, passed over said intersection and continued north from said West Twenty-eighth street, this plaintiff, being desirous of continuing his journey westward on said Twenty-eighth street, drove his team in a westerly direction on and over the east track of said defendant, at a point where said streets cross, and immediately behind and after said car had passed; that as he drove on and over said east track, said south bound car on the west track was passing over said crossing; that as the same continued southward and over said crossing, plaintiff drove his team westward upon, and attempted to drive over, said west track at a point where said streets intersect; and plaintiff says that, as he drove his team of horses on said west track another electric car approached from the north on said west track, running not to exceed 100 feet behind the car that had just passed said crossing, south bound as aforesaid; that said car, so approaching from the north, was running at an unlawful, dangerous, and negligent rate of speed, to wit, twenty-five miles per hour; that said defendant or its servants in charge of said car, did not sound the gong or otherwise give notice or warning of the approach of said car until said car was within fifteen feet of said crossing, and after plaintiff's team had entered upon said west track; and therefore plaintiff could not remove his team and wagon from said west track, and while doing all in his power to do so, said car, propelled as aforesaid and in charge of the servants and employes of said defendant, was run in a negligent and wanton manner against, on, and over said team and wagon in a violent manner and without any fault or negligence on the part of plaintiff, whereby one of the said horses was so maimed that it was rendered useless and had to be killed, and plaintiff's wagon and harness were destroyed, to his damage in the sum of $ 250. Plaintiff says that before and as he drove on said west track of defendant, as aforesaid, he looked but was unable to see the approach of said car from the north, on the west track, on account of his view being obstructed by said car on the east track, north bound as aforesaid; and he listened, but could not hear the noise of said car so approaching on account of the noise made by said cars so passing over said crossing as aforesaid; and plaintiff, believing that said defendant's west track was clear, and that defendant would not run or cause to be run said cars at an excessive rate of speed and in such close proximity over said public crossing in the manner aforesaid without giving warning thereof, and of the approach of said cars to the traveling public, who were constantly passing said crossing, this plaintiff drove on and attempted to cross said track in the manner and under the circumstances aforesaid and not otherwise."

The second paragraph of complaint differs from the amended complaint only in the additional averments that according to usage and custom, the appellee runs its cars, except in the business portion of the city, on schedule time, whereby said cars traveling on the same line or track and in the same direction, are separated from one to ten squares; that said custom or usage is notorious throughout the city, and that the appellant had notice thereof, and was relying thereon, when the accident occurred; that said usage or custom applied to the line upon which the accident occurred; and that the usual distance of the squares in the city, is from 300 to 500 feet, and that the square immediately above the place of the accident is 500 feet in length.

Counsel for appellee in their brief state that the acts of appellee complained of are that the car causing the accident was running at an excessive and unlawful rate of speed, in close proximity to the car preceding it, without sounding or giving warning of its approach. It is insisted that these allegations of negligence are not sufficient, because the other facts alleged show that such negligence was not the cause of the accident. From the following averment of the complaint, "immediately behind, and after said car had passed, and as he drove on and over said east track, said south bound car on the west track was passing over said crossing, and that as the same continued southward and over said crossing, plaintiff drove his team westward upon and attempted to drive over said west track, at a point where said streets intersect; and plaintiff says, as he drove his team of horses on said west track, another electric car approached from the north on said west track, running not to exceed 100 feet behind the car that had just passed said crossing, south bound as aforesaid; and that before the plaintiff could remove his team and wagon from said west track, he was struck by this last car, and his team and wagon injured," it is argued that since the accident occurred so quickly the car must have been almost upon the horses when they started forward upon the track, and that, no matter how slowly the car was running, it would have been impossible to stop either it or the horses before they were struck. It is argued that the cause of the accident was the obstruction to appellant's view caused by the north bound car. It appears that when appellant started forward to the west track, the second car going south was 100 feet away; that it was 100 feet behind the first car. From the discovery of the approaching car until the accident, only a few seconds intervened, as is evidenced by the fact that appellant's efforts to turn his team off the track were only partially successful.

We are not prepared to say that the cause of the accident was alone the obstruction of the view of the track by the north bound car. It is a fact to be taken into account in determining the cause of the collision. But the car which struck the horse was approaching a crossing at the rate of twenty-five miles an hour without giving any warning. Had the car been operated at a slower rate of speed, the motorman, within a distance of 100 feet, might have so slackened its speed as to have given appellant a second or two additional time to have gotten his team clear of the track. We can not say, as a matter of law, that the obstruction to the view of the track caused by the north bound car was the sole cause of the collision. We do not say, as a matter of law, that it is unlawful for one car to follow another at a distance of 100 feet. But whether or not it is negligence for cars to be run on the same track in cities over public crossings at a high rate of speed in close proximity to one another is a question under given conditions for the jury.

Street crossing of railways are places of danger. Every person must use due care before crossing them. Misconduct upon the part of the railway company will not excuse the performance of that duty upon the part of one injured. One is not in the exercise of due care who attempts to cross a railway track without taking reasonable precaution to assure himself, by actual observation, that there is no danger from an approaching car on...