Saylor v. Union Traction Co.

• Decision Date: 23 April 1907
• Docket Number: No. 5,224.,5,224.
• Citation: 40 Ind.App. 381,81 N.E. 94
• Parties: SAYLOR v. UNION TRACTION CO.
• Court: Indiana Appellate Court

40 Ind.App. 381

81 N.E. 94

SAYLOR

v.UNION TRACTION CO.

No. 5,224.^*

Appellate Court of Indiana, Division No. 1.

April 23, 1907.

Appeal from Circuit Court, Howard County; J. F. Elliott, Judge.

Action by Robert Y. Saylor against the Union Traction Company. Judgment for defendant, and plaintiff appeals. Reversed.Bell & Purdum, St. John & Charles, and Dailey, Simmons & Dailey, for appellant. Jas. A. Van Osdol, Wm. A. Kittinger, and Blacklidge, Shirley & Wolf, for appellee.

HADLEY, J.

This was an action for damages brought by appellant against the appellee for personal injuries sustained by the appellant by being struck by appellee's interurban car on Washington street, in the city of Marion, Grant county, Ind. The complaint is in four paragraphs. The first paragraph is a complaint for damages for willful injury. The second is for damages on account of negligence of appellee in driving its car at a high rate of speed, and omitting, while approaching the crossing where said accident occurred, to give proper signals, by reason of which negligence appellant was injured. The third is for damages on the grounds of negligence measured by a different standard than the ordinary rules of negligence by reason of the provisions of the franchise and ordinances of said city. The fourth is for damages on the grounds that appellee was a mere trespasser on the streets of said city, and therefore was a danger not to be apprehended by appellant, and that, being a trespasser and having no rights in the streets, it was its absolute duty to avoid injuring any other person rightfully on said streets, and in such case the doctrine of contributory negligence would not apply. Issues were joined on these several paragraphs and the cause tried by jury, and a general verdict returned for appellee, together with answers to a number of interrogatories. Motion was made by appellee for judgment on the verdict. Appellant filed his motion for a new trial. Motion for a new trial was overruled, and judgment rendered upon the verdict in favor of appellee. The errors relied upon for reversal are the giving of certain instructions at request of appellee, and the refusal to give other instructions asked by appellant.

The facts disclosed by the record in brief are as follows: Appellant was an old man, 71 years of age. His home was on the east side of Washington street, and about 80 feet south of intersection of Washington street and Sixth street. Washington street runs north and south, and Sixth street east and west. In Washington street is a double line of street railway tracks. Cars passing north run on the tracks on the east side of said street, and cars passing south run on the west side of said street. The crossing at Sixth and Washington is in a populous part of the city, and much frequented by persons in vehicles and on foot. On the day of the injury, at about 11:15 a. m., appellant left home, and as he stepped off of the veranda he looked south down Washington street two squares to Eighth street, but saw no car coming. He then walked up the sidewalk to the corner of Sixth and Washington, stepped off the curb into the street, and walked in a northwesterly direction towards the northwest corner of Sixth and Washington streets. When he was within three or four feet of the east track, he testified that he turned his head towards the south and looked down said street 40 or 50 feet, and that he neither saw nor heard the car that struck him. At this time two cars were passing said crossing on the west track, going towards the south. These cars were sounding their gongs, and his attention was directed to them. After glancing down the street, he stepped near the track, and was immediately struck by said interurban car and hurled several feet in the air and in a northeasterly direction a distance of 12 feet. The interurban car sounded no gong or whistle as it approached the crossing, and as it was passingthe cars going in the opposite direction. The evidence clearly shows that it was going at a very high rate of speed, variously estimated from 10 to 25 miles per hour, as some of the witnesses described it hurling paper and leaves up over the top of the car. The jury found by its answer to an interrogatory that it was running at a speed from 10 to 12 miles an hour. It was about half an hour behind its schedule time. Appellant knew that no interurban was due to pass that crossing at the time he endeavored to cross. Appellant was very seriously injured. The motorman testified that he saw appellant when he left the curb and started diagonally across the street. At that time the car was from 135 to 140 feet from appellant. He then observed that appellant was an old man, and that his face and vision were directed towards the northwest, away from the approaching car. He also testified that, when it first became apparent to him that appellant was intending to pass in front of the car, he was 10 or 15 feet away, and before he could avoid the collision his car had struck appellant, although he applied the brakes and made an effort to stop the same after appellant's danger thus became apparent to him; but he took none of these precautions when he first saw appellant approaching the track. The car ran 135 feet before stopping after the collision. It was shown that appellant at the time was possessed of good eyesight and good hearing. It was also shown that a library building was being erected on the southwest corner of said Sixth and Washington streets, and a number of workmen were engaged there in dressing stone and otherwise engaged in constructing said building, making noise and confusion calculated to distract the attention of appellant.

The court, at the request of appellee, gave a number of instructions defining contributory negligence, also the law as it related to willful injury. The giving of these instructions was properly excepted to. All of these instructions were as strongly in the favor of appellee, as they could well be drawn without directly contravening the law. Yet, while they were all of this nature, the giving of some of them was not error. Of these instructions numbers 3, 5, 11, 12, 14, and 18 will here be considered.

Number 3 instructed the jury that “the plaintiff was bound to look and listen before stepping in such close proximity to the tracks of the defendant as to be struck by a passing car; and, if by the failure to take such precaution for his safety, he was injured, then such failure on his part would be negligence such as would prevent his recovery in this action on either of the last three paragraphs of his complaint.”

The eleventh instruction, after some general rules, charged the jury as follows: “The ordinary care required of the plaintiff in this case is that if he had knowledge that the cars were passing and running on both of said railroad tracks where Sixth street crosses said Washington street, and if he had knowledge that cars were running every few minutes of the day, and that it was a dangerous place to cross when cars were running on or approaching said crossing, then, to have been ordinarily careful and diligent on his part, he was required to look both ways upon said railroad tracks, and to look, listen, and observe as to whether there were any cars approaching said crossing where he attempted to cross, and, if he did not do so, but entered on or near said track without such ordinary care or caution, then he cannot recover in this cause of action on account of the negligence of the said defendant, as charged in the second, third, and fourth paragraphs of the complaint.”

The twelfth instruction, in part, was as follows: “It is such person's duty to look, listen, and observe in each direction up and down the track for the approach of cars, and one who walks thoughtlessly and heedlessly along or near a street car track, without such observation and without such care and caution and is injured, cannot recover on the ground of negligence, on account of his own contributory negligence.” The fourteenth instruction was as follows: “Where double tracks for electric street railways are laid upon a public street of a populous city, where other public streets cross the said tracks, are places of danger, and especially so where electric cars are running back and forth on said tracks every few minutes; and at such places the rule of law is that persons attempting or making an effort to cross the railroad tracks at such points are bound to look and listen, and it is a rule of law that at such places of danger every person is bound to look and listen before attempting to cross said railroad tracks, for the electric cars upon such lines have a right to run their cars upon such lines of railroad, and the public and the plaintiff have a right to cross said railroad tracks, and to use said street on and across said railroad tracks subject to the superior right of the defendant company in this case, as to a priority of passage, and if the plaintiff in this case failed or neglected, from any cause whatever, to look or listen for an approaching car and did not see it for the reason that he did not use ordinary care to look and observe the same, then, in such case, he cannot recover for mere negligence on the part of the defendant.”

It will be observed that these instructions affirm as an absolute rule of law that a person when about to cross a street railway track in a populous city, at a much frequented crossing, must listen and look up and down the track before attempting to cross. It excludes every reason or condition that might excuse such precautions on his part. Under the modern decisions of this state, and a number of other states, this rule is too strict. A man under such conditions must use his senses of observation with due care, but to what extent or in what...