Northern Ind. Transit v. Burk

• Decision Date: 02 February 1950
• Docket Number: No. 28642,28642
• Citation: 228 Ind. 162,89 N.E.2d 905
• Parties: , 17 A.L.R.2d 572 NORTHERN INDIANA TRANSIT, Inc. v. BURK et al.
• Court: Indiana Supreme Court

Page 905

89 N.E.2d 905

228 Ind. 162, 17 A.L.R.2d 572

NORTHERN INDIANA TRANSIT, Inc. v. BURK et al.

No. 28642.

Supreme Court of Indiana.

Feb. 2, 1950.

Seebirt, Oare & Deahl, South Bend, Al W. Johannes, South Bend, for appellant.

James E. Keating, South Bend, Marshall F. Kizer, Plymouth, for appellee Corinne Burk.

John D. Pfaff, South Bend, George F. Stevens, Plymouth, Don F. Kitch, Plymouth, for appellee Cyrus V. Hill.

EMMERT, Judge.

This is an appeal from a judgment rendered on a verdict, in the sum of $7,000 for personal injuries on an action brought by Corinne Burk, hereinafter referred to as the appellee, against the appellant and appellee Cyrus V. Hill.

The second amended complaint charged concurrent negligence by the appellant and Cyrus V. Hill which proximately caused the injuries. When the facts in evidence, together with all reasonable inference to be drawn therefrom, are considered most favorable to the appellee Burk, the jury was justified in finding the collision happened in the following manner: Mishawaka Avenue in the City of South Bend, is a four lane public street, approximately 45 feet in width from curb to curb, running east and west, and for several blocks east and west of the place of collision there were no curves or hills to obstruct the view. The night of January 6, 1944, at about 11:00 o'clock, the appellee became a passenger on appellant's bus, which was traveling east on Mishawaka Avenue, and arrived in front of a factory site on the south side of the avenue, where it stopped to take on about 25 passengers who had been working in the factory. The bus driver did not stop the bus parallel with the curb, but stopped at about a thirty degree angle with the curb line, with the front wheels being five feet from the curb and the rear end extending out into the next traffic lane. There was no ordinance of the city authorizing angle parking, and Mishawaka Avenue was not a part of the state highway system. The bus was eight feet wide and 22 feet long; the inside of the bus was lighted, and the headlights and tail lights were burning. The night was cold and the pavement dry. The appellee was sitting on the left side of the rear seat when Hill, who had shortly before drunk some beer, drove the automobile eastward toward the scene of the collision.

Another automobile, with its lights burning, was approaching the place of collision from the east. Two women came from the front of the bus to cross the street, and Hill, who was driving at a negligent rate of speed, in order to avoid hitting the women and the car approaching from the east, drove his automobile into the rear of the bus, throwing the appellee from her seat and injuring her.

The errors assigned in the motion for new trial necessitate the proper construction of § 47-2123, Burns' 1940 Replacement, ¹ which is § 109 of ch. 48 of the 1939 Acts, 'Uniform Act Regulating Traffic on Highways'. This section provides: 'Except where angle parking is permitted by local ordinance for streets under local control and by order of the State Highway Commission on streets and highways in the state highway system, including the routes thereof through cities and towns, every vehicle stopped or parked upon a roadway where there is an adjacent curb shall be so stopped or parked with the right hand wheels of such vehicle parallel with and within twelve inches of the right hand curb.' Acts 1939, ch. 48, § 109, p. 289.

The appellant takes the position that by reason of the fact that its bus was a common carrier, it is excused from complying with the provisions of this section. The act itself creates no exemption, and the act in its definition of terms defines a bus as a motor vehicle. Section 47-1802 and 47-1804, Burns' 1940 Replacement. See Stafford v. Consolidated Bus Lines, Inc., 1942, 179 Tenn. 185, 164 S.W.2d 15; Jaggers v. Southeastern Greyhound Lines, Inc., 6 Cir., 1942, 126 F.2d 762. Nor has the City of South Bend adopted any ordinance under § 47-1828, Burns' 1940 Replacement, 'Regulating the standing or parking of vehicles,' which would make the stopping of the bus at an angle with the front end five feet from the curb proper. Traffic statutes should 'receive a reasonable construction consistent with the purpose of their enactment and the practical difficulties that arise in their application to particular cases.' Conder v. Griffith, 1916, 61 Ind.App. 218, 224, 225, 111 N.E. 816, 819. It is obvious that the purpose of the section was to prohibit the operator of any motor vehicle from occupying an unreasonable amount of the street when stopped or parked, so that the safety of other moving traffic would be protected by giving the moving traffic as much space as possible. In fact the reasons for prohibiting angle stopping or parking by a bus are even stronger than prohibiting it for a passenger car, since the greater length of the bus would, if stopped at an angle, occupy more of the street.

There is a distinction between parking and stopping a motor vehicle. Webster's New International Dictionary, 2d Ed., defines the term 'stop' to mean, 'A cessation of motion, operation, progress, function, or the like.' Parking includes stopping, but stopping does not necessarily result in parking. A leading case on the question of parking has defined the term as follows: '* * * The term 'parking' as applied to automobiles and automobile traffic, has a well-defined meaning, understood by all automobile drivers to mean not only the voluntary act of leaving a car on the street unattended but also the stopping of a car on the highway though occupied and attended for a length of time inconsistent with the reasonable use of a street, considering the primary purpose for which streets exist. Streets exist primarily for the purpose of travel.' Village of Wonewoc v. Taubert, 1930, 203 Wis. 73, 77, 78, 233 N.W. 755, 756, 72 A.L.R. 224.

The reasonableness of the purpose, place and length of the stopping of the vehicle may determine whether the cessation of motion is a mere stop or a parking. See 5 Am.Jur. 682, § 334; ² Andrews v. City of Marion, 1943, 221 Ind. 422, 430, 47 N.E.2d 968; Dare v. Boss, 1924, 111 Or. 190, 224 P. 646; Leveillee v. Wright, 1938, 300 Mass. 382, 15 N.E.2d 247. The uniform act has been carefully prepared, and it is difficult to presume the draftsmen were careless in the use of language, or that in the many places where the word 'stop' is used, it means not only stop but also parking, for parking under any possible definition includes stopping. Under appellant's contention the term 'stop' would be mere surplusage in the act. Moreover, the dangers to the traveling public from stopping in an unreasonable manner may be just as serious as stopping a sufficient length of time to become parking.

In construing § 47-2123, Burns 1940 Replacement, it is not possible to furnish a mathematical formula for construing the numerous other safety requirements of the Uniform Act Regulating Traffic on Highways, and the effect of this decision must be limited to the section under consideration. Nor is it possible to give an extended discussion of the principles involved in determining whether a violation of a statutory duty is negligence per se, or merely prima facie evidence of negligence. Quite often the cases in the discussion of statutory negligence have failed to distinguish between negligence which results from the breach of the duty, and actionable negligence which involves failure to perform an established duty which proximately causes injury to the plaintiff. ³ When the breach of a statutory duty is held to be negligence per se, or negligence as a matter of law, the court holds that the legislature has created an absolute duty, which cannot be escaped by attempting to prove that the breach was in fact done in the exercise of due care. Prest-O-Lite Co. v. Skeel, 1914, 182 Ind. 593, 106 N.E. 365, Ann.Cas. 1917A, 474; Gerlot v. Swartz, 1937, 212 Ind. 292, 7 N.E.2d 960; O'Donnell v. Elgin, Joliet & E. R. Co., 1949, 70 S.Ct. 200, 94 L.Ed. ----, Carter v. Atlanta & S. A. B. R. Co., 1949, 70 S.Ct. 226, 94 L.Ed. ----. The defendant may prove that he was not guilty of any act or omission which breached the duty and so avoid liability. Or even if the act or omission in breach of the statutory duty does not proximately result in injury under the principles of causation, it is still not actionable negligence. A violation of the statutory duty must be also a proximate cause of the injury to constitute actionable negligence. Prest-O-Lite Co. v. Skeel, 1914, 182 Ind. 593, 106 N.E. 365, Ann.Cas. 1917A, 474, supra; Beckstein v. Sayler, Adm'r, 1932, 93 Ind.App. 686, 179 N.E. 581.

The general rule is that a violation of a statute enacted for reasons of safety is negligence per se, or negligence as a matter of law. Rentschler v. Hall, 1946, 117 Ind.App. 255, 69 N.E.2d 619; Cook v. Ormsby, 1909, 45 Ind.App. 352, 89 N.E. 525. 'Where a standard of duty is fixed, and its measure defined by law, the omission of that duty is negligence per se.' Presto-O-Lite Co. v. Skeel, 1914, 182 Ind. 593, 600, 106 N.E. 365, 368, Ann.Cas. 1917A, 474, supra. It has been held that the violation of statutory requirements as to lights, flares, reflectors and brakes creates an absolute duty and constitutes negligence per se. ⁴ At common law the right to stop at a reasonable place and in a reasonable manner is an incident of the right to travel. 2 Blashfield's Cyclopedia of Automobile Law and Practice, Perm.Ed., § 1191. Mechanical failure, obedience to police officers, partial road blocks, persons standing in the street, obstructions, conditions in the street dangerous to life or property, congested traffic situations, or other vehicles already stopped or parked may prevent an operator from stopping parallel with and not more than within twelve inches of the right hand curb. It must be borne in mind that a common carrier bus has the positive duty to receive and discharge passengers, and...