Robards v. Indianapolis Street Railway Co.
| Citation | 67 N.E. 953,32 Ind.App. 297 |
| Decision Date | 05 June 1903 |
| Docket Number | 4,319 |
| Parties | ROBARDS v. INDIANAPOLIS STREET RAILWAY COMPANY |
| Court | Court of Appeals of Indiana |
32 Ind.App. 297. At 301.
Original Opinion of January 28, 1903, Reported at: 32 Ind.App. 297.
The petition for rehearing is overruled.
ON PETITION FOR REHEARING.
The rule is universal, in cases in which the injured party seeks to recover damages for personal injuries occasioned by the negligence of another, that the complaining party can not recover if it affirmatively appears that he was guilty of contributory negligence. He must show some care to avoid the injury. He must, at least, use his natural senses. The traveler must not only do all that an ordinarily prudent man would do under like circumstances, but all that the law declares that an ordinarily prudent person should do. The law measures the duty. A prudent man may do what the law forbids or he may omit to do that which the law enjoins, nevertheless the doing of the one and the omission of the other is negligence. The most prudent men are not always exempt from carelessness, and when actually negligent, the law attaches the same consequences to their conduct as to similar conduct in others. Cincinnati, etc., R. Co. v. Grames, 8 Ind.App. 112, 34 N.E. 613.
In numerous cases it has been held that the plaintiff's conduct is not contributory negligence, if, notwithstanding his negligence, the injury could have been avoided by the use of ordinary care by the defendant. That rule prevails when the plaintiff is in a position of threatened contact with some agency under the control of the defendant, when the plaintiff can not, and the defendant can, prevent the injury. It does not apply where both parties are contemporaneously and actively in fault, and by their mutual carelessness an injury ensues to one or both of them. Everett v. Los Angeles, etc., R. Co., 115 Cal. 105, 115, 46 P. 889, 34 L.R.A. 350. The rule does not apply, where, as in the case before us, the negligence of the party injured continues up to the moment of the injury, and was a contributing cause thereof. Appellant was not riding in a noisy or unwieldy vehicle drawn by horses, but on a swift and noiseless bicycle, susceptible, by slight pressure of the hand, of being instantly turned aside so as to avoid contact with the car. Had he looked or listened he would have known of its approach, and could have put himself out of danger up to the instant of his injury.
The petition for rehearing is overruled.
Action by appellant against appellee for personal injuries alleged to have been occasioned by appellee's negligence. General verdict for $ 700 for appellant upon the first paragraph of complaint. With the general verdict the jury returned answers to interrogatories. Appellee's motion for judgment upon the answers to interrogatories notwithstanding the general verdict sustained, and exception. Judgment for appellee. Error is assigned that the court erred in sustaining the motion for judgment upon the answers to interrogatories notwithstanding the general verdict.
The material averments of the paragraph are, in substance, that at the time of the alleged injury, appellee maintained and operated a double-track street railway line upon Illinois street, in Indianapolis; that appellant was traveling along said street on a bicycle, going south, riding on the outside of the west track near the outer rail; that appellee's car was also traveling south behind appellant, at the time of the collision; that appellant had been in full view of the motorman in charge of said car for some time prior to the infliction of the injuries, and had been riding in a direct south line near said outer rail for many rods in full view of the motorman; that notwithstanding said facts the motorman negligently and without regard to appellant's rights ran the car at great speed during all said time and distance without giving appellant any warning of the car's approach until it struck him; "that said motorman could easily have warned plaintiff of the approach of said car by sounding his gong, or by giving other alarms, so as to have prevented said collision, and could also have checked and slackened the speed of said car after the danger of collision became apparent to him, and could have avoided the infliction of said injuries; but plaintiff avers that said motorman did not give any alarm whatever, and did not check or slacken the speed of said car after the aforesaid danger became apparent to him."
The answers to interrogatories show, in substance, the following facts: On the day appellant was injured, Illinois street was about sixty feet wide from curb to curb, extending north and south from Market street in a straight line for many squares. The entire roadway of said street was paved with asphalt from curb to curb, and open and in use for general travel. In said street there were two street railway tracks laid even with the surface of the street, each about four feet eight and one-half inches from rail to rail, and so placed as to be equally distant from the center line of the street, and about five feet apart. The cars going south on Illinois street use the west track, and those going north the east track, and all of said cars projected over the rails of the track upon which they ran about ten or twelve inches on each side. At the time of the accident plaintiff was a man thirty years of age fully possessed of the faculties of hearing and seeing, and having ordinary mental attainments, judgment, and physical strength. He was familiar with Illinois street at the place of the accident, and the location of the car tracks therein, and the manner and frequency with which cars were operated thereon. At the time there were three separate car lines, the cars of which used the tracks on Illinois street for at least one square in both directions from Market street, and there were cars passing along the tracks at that place very frequently and at irregular intervals. The plaintiff had been riding along by the west rail of the west track about three hundred feet, and so close to it (about twelve or fifteen inches) that a car could not pass on that track without striking him. His left shoulder was eight or ten inches from the west rail. During all the time he was in full control of his bicycle, and in full possession of all his faculties and physical powers. While he rode beside the street car track he was riding at a speed of four or five miles an hour, and the car was running ten or twelve miles an hour, and was running at that speed when it struck the plaintiff. There was no obstruction to the view between the plaintiff and the car at any time while plaintiff was riding beside the track. He was about three hundred feet from the place of the accident when he last looked toward the north to see if any car was approaching. He did not see the car with which he afterwards collided when he so looked. Plaintiff was struck by one of defendant's south-bound electric cars, and thrown to the pavement, while riding a bicycle along the outside and near the track of the defendant company on North Illinois street, near Market street. The motorman in charge of said car saw the plaintiff near said track on which said car was running in time to have stopped said car before overtaking plaintiff, but made no effort to stop it. No gong or other alarm or warning of the approach of said car just prior to the collision was given. Plaintiff did not know that said car was approaching him before it struck him. The car and the plaintiff were both going south when the plaintiff was struck. The motorman had reason to believe, after he saw plaintiff on his bicycle, near the outer rail of said car track, and before the collision, that the car was liable to come in contact with the plaintiff, or the bicycle on which he was riding, unless he slackened the speed of the car, or gave the plaintiff warning of its approach. The motorman knew for some time before the collision that the plaintiff's body, as he was riding near said track, projected far enough over to the east to come in contact with the end or side of the said car if he (the motorman) should continue the movement of said car, and plaintiff should continue on his way the same distance from the track, until said car should overtake him. There was not at any time after the plaintiff began to ride beside the said rail anything but roughness of street to prevent him from turning away from said rail at any time if he had so wished to do. If plaintiff had at any time, while riding beside the track, turned to his right, away from the track, about four feet, he would have gotten out of danger of any car which might run on that track. He could, without any danger to himself, but only with some inconvenience, because of the roughness of the roadway of the street, have turned off to his right, into the roadway, at any time or place while and where he was riding beside the track. The southwest corner of the car going south came in contact with the plaintiff on his bicycle. The noise made by the ordinary operation of the car, at the time of and just before the plaintiff's accident, could have been heard by the plaintiff, if he had listened for it, three hundred feet. The jury also answered that there was no evidence as to the following facts, about which they were interrogated, viz.: That the motorman knew that his car had struck the appellant at the time of the collision; whether there were other vehicles or pedestrians in the west roadway of Illinois street, near the...
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Robards v. Indianapolis St. Ry. Co.
... ... averments of the paragraph are, in substance, that, at the time of the alleged injury, appellee maintained and operated a double-track street railway line upon Illinois street, in Indianapolis; that appellant was traveling along said street on a bicycle, going south, riding on the outside ... ...