Pfisterer v. Key
| Decision Date | 15 April 1941 |
| Docket Number | 27543. |
| Citation | 33 N.E.2d 330,218 Ind. 521 |
| Parties | PFISTERER v. KEY. |
| Court | Indiana Supreme Court |
Appeal from Gibson Circuit Court; Eldo W. Wood, Special judge.
Robert D. Markel and Wilbur S. Furlow, both of Evansville, for appellant.
McDonald & McDonald and Sanford Trippet, all of Princeton, for appellee.
This action was brought by appellee, the father, to recover for the alleged wrongful death of his son. From a judgment in favor of appellee appellant appeals.
The basic facts resulting in the almost instant death of appellee's son are not in dispute. Only two persons witnessed the accident, the appellant, and his friend who was riding with him in the automobile. The following facts are disclosed by interrogatories and answers thereto, and the testimony given by the two eye witnesses, and are in substance as follows:
On June 21, 1936, about 7:30 o'clock in the evening, appellant was on his way to his home in Evansville, Indiana, and passed through the town of Patoka, and proceeded southward on U. S Highway No. 41, at the rate of about 45 miles per hour. The lights on his 1936 Plymouth Coach were burning, but the jury found that it was dusk, but could see plainly. The weather was fair. There was a curve in the highway just south of the town of Patoka, but from the curve southward the highway was level and straight for about 930 feet to the scene of the accident, and south of the scene of the accident for a distance of about one-third of a mile. The cement portion of the highway was 18 feet wide with a gravel shoulder on either side three feet in width, flanked by grass on each side. Appellee's son, a boy 15 years and 9 months old, was walking northward on the pavement 2 or 3 feet from the west edge, leaving at least 15 feet of the pavement to the left of him for other traffic. There was no other traffic on the highway within sight of the scene of the accident. The boy had finished his first year in high school; his hearing his eye sight with glasses, were normal; he was wearing a dark suit; he lived about 60 rods from the highway, and was familiar with the use and traffic on the highway. There was nothing on the highway to obstruct his view of approaching vehicles for a third of a mile northward, and nothing to have prevented him from hearing the approach of automobiles had he listened.
The undisputed evidence shows that appellant's companion saw the boy when he turned the curve immediately south of the town of Patoka, but said nothing to appellant, and did not see the boy thereafter, as he was looking out of the window, until immediately prior to the accident. Appellant was driving on the right-hand side of the highway and did not see appellee's son until the front of the car was within 15 to 20 feet of him, at which time the boy was walking with his head downward, and appellant testified that he did not think the boy saw or heard the approach of the car. At that time there was insufficient time to sound the horn or give other signal, but appellant swerved his car to the left in an attempt to avoid striking the boy, but the right front fender came in contact with him, and the impact threw the boy against the rear part of the right door, causing instant death.
Appellant testified that he stopped his car on the west side of the road about 87 paces south of the place of collision. The jury found, in answer to interrogatories, that after appellant saw decedent he could have reasonably slowed, but not stopped, his car in time to avoid the collision, and that appellant also could have reasonably turned his car more and avoided hitting decedent.
Upon these facts appellant contends that appellee's son was guilty of contributory negligence as a matter of law, and that the judgment should be reversed, with instructions to enter judgment for appellant on answers to the interrogatories, notwithstanding the general verdict.
Appellee says that the above facts present a mixed question of law and fact, and therefore is a proper question for the jury; and further contends that even though his said son was negligent, nevertheless the general verdict should not be disturbed because the answers made by the jury to the interrogatories show that appellant had the last clear chance to avoid the collision.
The principles of law governing questions presented herein are not new, or complex. We have, however, had considerable difficulty in the application of these principles in determining whether or not the facts here presented show contributory negligence on the part of appellee's son, as a matter of law. So it is in the application of well established rules and principles to the facts, that has given the court some concern.
It is clear, we think, that appellee's son had a legal right to walk on the left side of the highway facing oncoming traffic; and, under the law of the road, appellant was also expected to drive on the west or right-hand side of the pavement. Even at common law, both appellee's son, and appellant, were under the duty of exercising ordinary care under the circumstances.
The rights and duties of appellee's son is clearly defined in the following cases: Indianapolis Traction Co. v. Kidd, 1906, 167 Ind. 402, 407, 79 N.E. 347, 7 L.R.A.,N.S., 143, 10 Ann.Cas. 942; Fishman v. Eads, 1929, 90 Ind.App. 137, 168 N.E. 495. Quoting from Raymond v. Hill, 1914, 168 Cal. 473, 143 P. 743; Lindloff v. Duecker, 1933, 217 Iowa 326, 251 N.W. 698; Korstange v. Kroeze, 1933, 261 Mich. 298, 246 N.W. 127.
Appellant's duty in some respects has been defined by statute. Acts of 1925, Sec. 47-513, Burns' St.1933, Sec. 11166, Baldwin's Statutes 1934, provides: 'In approaching a pedestrian who is walking or standing upon the traveled part of any highway, and not upon a sidewalk * * * every person driving or operating a motor vehicle * * * shall slow down and give a timely signal with the bell, horn or other device for signaling.'
By the provisions of the above statute, the duty to slow down, to give warning upon approaching pedestrians, is enjoined upon the driver of an automobile. The warning is for the purpose of giving the pedestrian an opportunity to protect himself. See Crotian Bros. Packing Co. v. Rice, 1925, 88 Ind.App. 126, 147 N.E. 288. We think it also might be construed as a notice to the pedestrian that the driver intends to use that part of the highway on which the pedestrian is walking. The duty to slow down is enjoined upon drivers of automobiles, perhaps to the end that the driver may change the course of his automobile in time to avoid a collision, if the pedestrian does not heed the warning.
Under the circumstances here presented, appellant was not required to use the right side of the pavement, for the reason that at least 15 feet of the pavement to the east was available for his use, as there was no other traffic on the highway at the time. If a car had been approaching appellant from the south at the time appellant's car approached appellee's son, a different question would be presented. But here the road was free from any traffic whatsoever, save and except appellee's son, and appellant's automobile.
There is no question presented in this case as to the negligence of appellant. Therefore, we are not concerned with his conduct, as it might affect his negligence, but, nevertheless, the conduct of appellant as he approached appellee's son must be considered as affecting decedent's conduct.
In determining whether or not appellee's son was guilty of negligence contributing to his own injury, his actions must be considered in the light of the conduct of appellant as he approached appellee's son. There was no evidence in the case as to whether or not appellee's son saw or heard the approach of appellant's car. But since the evidence discloses that there was no obstruction between appellee's son and the approaching car that would have prevented said son, by the exercise of ordinary care, from seeing the car as it approached, the jury had a right to infer that appellee's son did see and did hear the car approaching.
It has been many times said that it is negligence to fail to see or hear that which you could see or hear, by the exercise of ordinary and reasonable care, and for that reason the law attaches the same legal consequences for not seeing or hearing as it does if in fact you did see and hear. However, negligence must be proven, and in the absence of some proof of negligence, the jury would not be justified in inferring negligence. While the evidence was to the effect that appellant did not in fact see appellee's son, yet appellee's son did not know that appellant did not see him. Therefore, as heretofore pointed out, appellee's son had a right to assume that appellant did see him, and it was not negligence per se on his part to act upon that assumption. Consequently, we cannot say, as a matter of law, that appellee's son was guilty of negligence in continuing his direct course on the assumption that appellant saw him and would exercise ordinary care toward him, and that appellant would be mindful of the duties imposed upon him by the above mentioned statute.
While it may be true that the sound of a horn was unnecessary to warn appellee's son of its approach, the fact that the horn was not sounded might have indicated to appellee's son that the appellant would not insist on pursuing his direct course, but would sufficiently swerve to the left upon the nonoccupied part of the highway, and thus avoid a collision.
Therefore until appellee's son had some notice to the contrary, it may reasonably be said that the conduct of the decedent in maintaining his course was that of an ordinary prudent person under the circumstances. This view finds support in the following...
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