Rump v. Woods
| Decision Date | 08 May 1912 |
| Docket Number | 7,588 |
| Citation | 98 N.E. 369,50 Ind.App. 347 |
| Parties | RUMP v. WOODS |
| Court | Indiana Appellate Court |
From Allen Circuit Court; Edward O'Rourke, Judge.
Action by Alvey Woods against Frederick J. Rump. From a judgment for plaintiff, the defendant appeals.
Reversed.
William P. Breen and John Morris, for appellant.
James B. Harper and John W. Eggeman, for appellee.
This is an appeal from a judgment in favor of appellee, for damages for personal injuries caused by a collision with the automobile of appellant. With its general verdict the jury returned answers to a number of interrogatories. Appellant moved in the trial court for judgment on the answers to interrogatories notwithstanding the general verdict, which motion was overruled. This ruling is saved and assigned as error.
The facts as found by the jury in answers to interrogatories are substantially, as follows: Fairfield avenue, in the city of Fort Wayne, is a public highway running north and south, and at the point where appellee was injured it runs through a business, or closely built up portion of the city, and there are sidewalks on each side thereof. Appellee was driving a milk wagon, with two horses attached to it, on the west side of the highway used for conveyances. He was driving the wagon himself, and Mr. Bradbury sat on the left-hand side of him. When he had driven his wagon a short distance south of Taylor street, he alighted from it on the east side, with his face towards the east, carrying a milk bottle in each hand, and started directly across the street to deliver the milk to Doctor Berry on the opposite side of the street. Just before appellee alighted from the milk wagon he looked south on Fairfield avenue, but did not see appellant's automobile approaching him, because it was not in sight. When he alighted, he did not look south on Fairfield avenue for approaching vehicles, and had he done so he could have seen appellant's automobile approaching him, and the collision would not have occurred in the manner in which it did. At that time the automobile was within twenty-five feet of appellee, and was going at the rate of thirty miles an hour. After appellee started to cross the street he collided with appellant's automobile, and was injured.
Appellant insists, with much earnestness, that the facts stated in the answers to interrogatories show that appellee was guilty of contributory negligence as a matter of law. According to these answers, appellee looked south on Fairfield avenue just before he stepped out of the wagon, and did not see the automobile approaching from that direction. He picked up two bottles of milk, and stepped out on the street, while the wagon was still moving, but he did not look to the south a second time before starting to cross the street; if he had done so, he would have seen the automobile within twenty-five feet of him, and could have avoided the injury. The interrogatories do not show how much time elapsed from the time he looked south until he was struck. Evidence may have been introduced to show that only a short time had elapsed, and that his attention was attracted in the opposite direction by approaching vehicles. The interrogatories do not show how far he had walked before he was struck, and the evidence may have shown that he was struck when taking the second or third step. He was required to look north as well as south, and the evidence may have shown that on stepping out of the wagon he looked first in that direction, or that his attention was diverted by other vehicles on the street. It is apparent, we think, that evidence was admissible under the issues from which the jury may properly have found that appellee was in the exercise of ordinary care, even though he did not look south after getting out of the wagon and before starting to cross the street. The motion for judgment on the interrogatories was properly overruled.
It is claimed by appellant that the evidence shows without dispute that appellee was guilty of contributory negligence, and that, therefore, his motion for a new trial should have been sustained, on the ground that the verdict is not sustained by the evidence.
We have examined the evidence in this case bearing on the question of contributory negligence, and we are of the opinion that this question was properly submitted to the jury for its decision. It is apparent from the evidence that appellee used some care in looking for the approach from the south, of automobiles and other vehicles. It was for the jury, under the facts shown in the case, to say whether the care used was such as a person of ordinary prudence would have exercised under the circumstances. Where the facts and circumstances as disclosed by the evidence are of such a nature as to warrant different inferences, so that two minds of equal fairness and intelligence might reach opposite conclusions, the question of contributory negligence should be submitted to the jury. Cleveland, etc., R. Co. v. Lynn (1909), 171 Ind. 589, 85 N.E. 999, 86 N.E. 1017; Baltimore, etc., R. Co. v. Walborn (1891), 127 Ind. 142, 26 N.E. 207; Mann v. Belt R., etc., Co. (1891), 128 Ind. 138, 26 N.E. 819.
In the absence of knowledge to the contrary, appellee had a right to presume that all persons using the street, including appellant, would use ordinary care to avoid injuring pedestrians in the street. He had a right to presume that automobiles would not be run at an unlawful or dangerous rate of speed, but that they would be operated at such a rate of speed and with such care as reasonable prudence required, in view of all the conditions and circumstances. While the wrongful conduct of appellant in operating his automobile at an excessive rate of speed would not excuse appellee from the exercise of ordinary care; still, the jury had a right to consider this presumption in determining whether his conduct at and immediately before his injury was reasonably prudent under the circumstances. The evidence shows that when appellee looked south, before alighting from the wagon, he had an unobstructed view of the street for 450 feet, and that he saw no automobile approaching from that direction. In deciding whether appellee used ordinary care in attempting to cross the street without again looking south after he alighted from the wagon, the jury had a right to consider whether a man of ordinary prudence would have believed, under the circumstances, that he could cross before an automobile driven at a reasonable rate of speed would cover that distance. Cleveland, etc., R. Co. v. Lynn, supra.
We are next required to consider whether the court committed reversible error in its instructions to the jury, and in refusing to give certain instructions requested by appellant. The first instruction is objected to on the ground that it misstates the issues. The issues are not stated in this instruction with accuracy, and it is subject to criticism on that account, but we need not decide whether this constitutes reversible error, for the reason that the case must be reversed for error in giving other instructions. As the same mistake is not likely to occur on a retrial of the case, we need not further consider this instruction.
By instruction five, the court told the jury that a person traveling on foot in a street is not guilty of contributory negligence if he fails to anticipate or take special precautions against injury by persons riding or driving at an unlawful or dangerous rate of speed.
A person traveling on foot in or across a street is required to use ordinary care to avoid being injured by coming in contact with cars or vehicles operated or driven in the street. He has a right to presume that persons in charge of cars and other vehicles will use ordinary care to avoid injuring him and to govern his conduct accordingly. If he uses such care as would be ordinarily requisite to protect himself from injury by cars carefully operated, he has discharged his full duty, and is not guilty of contributory negligence. However, if he knows that a car or other vehicle is being operated on said street in a negligent, reckless or unlawful manner, then a special duty arises to use such additional care as reasonable prudence would dictate in view of the increased danger so occasioned. The care used should be proportionate to the danger ordinarily incident to crossing the street, unless special or particular dangers are known, in which event, the care...
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