Union Traction Co. of Indiana v. Vandercook

• Decision Date: 15 January 1904
• Citation: 32 Ind.App. 621,69 N.E. 486
• Parties: UNION TRACTION CO. OF INDIANA v. VANDERCOOK.
• Court: Indiana Appellate Court

32 Ind.App. 621

69 N.E. 486

UNION TRACTION CO. OF INDIANA

v.VANDERCOOK.^*

Appellate Court of Indiana, Division No. 1.

Jan. 15, 1904.

Appeal from Circuit Court, Delaware County; Joseph G. Leffler, Judge.

Action by Michael E. Vandercook against the Union Traction Company of Indiana. From a judgment for plaintiff, defendant appeals. Affirmed.James A. Van Osdol, Wm. A. Kittinger, Arthur W. Brady, and Rollin Warner, for appellant. Bingham & Long, for appellee.

ROBINSON, J.

Suit by appellee for personal injuries. The complaint, which was held sufficient against a demurrer for want of facts, avers, in substance, that an ordinance limited the speed of appellant's cars to 10 miles an hour between street crossings, and to 6 miles an hour at crossings; that appellant's track crossed White river on a bridge parallel with, and immediately north of, High Street Wagon Bridge; that at a point about 68 feet southeast of the south end of these bridges appellant maintained a public street crossing across its tracks, leading from High street, a principal street; that on account of the close proximity of the two bridges, and the manner of their construction, a person traveling northwest on High street could not see an approaching car for more than 150 feet northwest of the bridge, and while it was crossing the bridge, and until it came within 60 feet of the southeast end; that appellee was unable to see the car until it reached a point 60 feet northwest of the south end of the bridge as he entered upon the crossing, all of which appellant knew; that appellant at all times, except when appellee was injured, sounded the gong upon approaching the crossing, which appellee knew; that appellee, seated in a rubber-tired, open, single road wagon, with due care and caution, looked and listened for cars before going upon the crossing; that no car could be seen or heard by appellee, though he could see a distance of 128 feet up the track; that at the time there was no car within 250 feet of the crossing; that the car had approached sufficiently near to be obscured by the bridge when appellee entered upon the crossing; that, because of the wind, appellee was unable to hear the approach of the car when more than 150 feet from the crossing; that, while looking and listening, appellee started across the crossing, when appellant, by its servants, negligently and wrongfully, without sounding the gong or giving any signal or warning, ran the car at a speed of 40 miles an hour at and against appellee, whereby he was injured; that after he saw the car he unsuccessfully tried to avoid being struck; that appellant's motorman in charge of the car saw appellee's horse upon the crossing when the car was over 200 feet away; that the car was more than 250 feet away when appellee first drove his horse upon the crossing; that the car could have been stopped within a distance of 75 feet at any time after appellee's horse entered upon the track at the crossing; that appellee's injury was the result of appellant's negligence in running the car at the unlawful rate of speed, not keeping the same under proper control, and in not stopping the same before reaching the crossing, all without appellee's fault or negligence. We do not think the complaint open to the objection that the particular averments of what appellee did, show his own negligence contributed to his injury. It is averred that he looked and listened as he approached the crossing, and that, as he started to cross, there was no car within 250 feet of the crossing. He did not know that a car was approaching. No gong was sounded, nor warning given. Under the circumstances existing at the time, he had the right to assume that he could safely pass over the crossing. But it cannot be said, as matter of law, under the circumstances surrounding appellee at the time, that he was negligent in attempting to cross over the crossing. In determining his conduct at the time, he could not be held to presume that, if a car did approach the crossing, it would be running at a high and dangerous rate of speed. From the averments it appears that there was no car near when appellee started over the crossing. It is averred that the motorman saw appellee's horse upon the crossing when the car was 200 feet away, and that the car could have been stopped within a distance of 75 feet at any time after the horse entered upon the crossing. Under such circumstances, it was the motorman's duty to stop the car, if necessary to prevent an accident. It is not every act of negligence on the part of a person injured that will defeat a recovery, but only such negligence as materially contributes to the accident. Citizens' St. Ry. v. Abright, 14 Ind. App. 433, 42 N. E. 238, 1028. The complaint states a cause of action.

The jury answered interrogatories that the accident happened at a public crossing, which all cars approached from the northwest, running every 20 minutes, which appellee knew. Appellee drove northwest at 7 or 8 miles an hour until he turned to cross the tracks, when he was going 5 or 6 miles an hour. The car which struck appellee was about 100 feet from the southeast end of the bridge when appellee started to turn his horse to cross the tracks. The crossing was 67 feet from the southeast end of the bridge. After appellee turned his horse to cross the tracks, and before the horse entered upon the crossing, appellee looked and...