Union Traction Co. v. Moneyhun

• Decision Date: 27 June 1922
• Docket Number: No. 24065.,24065.
• Citation: 136 N.E. 18,192 Ind. 288
• Parties: UNION TRACTION CO. v. MONEYHUN.
• Court: Indiana Supreme Court

192 Ind. 288

136 N.E. 18

UNION TRACTION CO.

v.MONEYHUN.

No. 24065.

Supreme Court of Indiana.

June 27, 1922.

Appeal from Circuit Court, Madison County; Luther F. Pence, Judge.

Action by John P. Moneyhun against the Union Traction Company. From judgment for plaintiff, defendant appeals. Transferred from the Appellate Court. Affirmed.

Superseding former opinions, 127 N. E. 443;128 N. E. 406;133 N. E. 133.

J. A. Vanosdal and Kittinger & Diven, all of Anderson, for appellant.

Ellison & Neff, of Anderson, for appellee.

TRAVIS, J.

Appellee sued for damages for personal injuries and injuries to property inflicted by the appellant. A statement of facts deemed sufficient for an understanding of the application of the legal doctrines invoked is as follows:

Appellant operated a single-track interurban railway along and upon one of the principal public streets of a city. Appellee was driving south along a street that crossed the street upon which the railway was located at right angles. The street occupied by the railway had been paved on either side of the track in the fall, just prior to the approach of winter, and the space between the rails of the track and on one foot on the outside of either rail was left unpaved, and the railway track and its bed were in the original position, which was about 12 inches above the surface of the new pavement. The injury was inflicted in December. To afford a means for vehicles to cross the railway track upon this street intersection, appellant had made an approach of dirt, sand, and gravel on either side of the track from the pavement to the rail. The streets forming the intersection lay with the main points of the compass east and west and north and south. The improved part of the street in which appellant's track was located was 30 feet in width between curb lines with a parkway between the curb and the sidewalk on either side of the street. Upon the lot forming the northeast corner intersection of the streets was located a church 40 feet wide north and south by 60 feet in length and east and west. To the north and to the east of the church the view easterly by south was unobstructed by buildings or fences.

Appellee plaintiff was a man 70 years of age, with good sight and hearing, and drove his own automobile, which had three speeds forward and was of the runabout type of body. At the time of the accident he was on his way home from a trip to the city with some produce, which he delivered to a grocery situated two blocks north of this street intersection. When he started home from the grocery the body of his automobile was inclosed with side curtains, and he drove the first block south from the grocery with the speed lever set in first gear. He changed the speed lever to second gear in the second block (which is the first block north of the railway), and was then going between 5 and 6 miles per hour; and while going the second block before reaching the church he continued to watch for a street car past the southwest corner of the church until after he had passed the church, and when he could see down the cross street east, and, not seeing any car, he then looked to the west to see if a car was approaching from that direction, and, seeing none approaching, and being then about upon a line with the north curb of the street, he put his foot upon the accelerator to give his automobile more power and speed to mount the incline to pass over the street car track, which gave him a speed of about 8 or 9 miles an hour, but just as he had so accelerated the power and speed of his automobile he again looked to the east, when he saw a street car very close to him, and he then threw out the clutch and applied the brakes, but before he could stop the front wheels of his automobile were upon the track, when the collision occurred. The automobile was thrown and pushed by the collision to the northwest over the curb and across the sidewalk, where it stopped. Appellee was not thrown out of his car, but was taken out by people who first reached him. He crossed this intersection frequently, and knew the conditions of street and track and surrounding conditions.

The street car, as it bore down upon appellee from the east, was traveling at a rate between 25 and 30 miles per hour, in spite of an ordinance of the city limiting the speed of electric cars to 12 miles per hour, and without the sounding of gong or other alarm; and, as testified to by the motorman as witness for appellant, he did not have the car under control, although the brakes of the street car were not defective.

The affirmative side of the case was based upon two paragraphs of complaint, the first for personal injuries, and the second for injuries to his automobile, both of which paragraphs were based upon the alleged negligence of appellant negligently permitting to remain on each side of the track an embankmentof 6 inches, in operating the car at a speed of 25 miles per hour in violation of the ordinance of the city limiting the speed of electric cars to 12 miles per hour, and in failing to sound the gong on the car, or give any other alarm, and without any negligence contributing thereto. The issue formed by the general denial of the appellant was, under the instruction of the court, decided by a jury in favor of the appellee.

The appellant filed its motion for a new trial for the reasons that the verdict is not sustained by sufficient evidence and is contrary to law, and in giving to the jury two instructions complained of, numbered 10 1/2 and 13, and in refusing to give three instructions tendered which were numbered 37, 38, and 39, and which motion was overruled and error assigned upon such ruling.

[1][2] Instruction 37, refused by the trial court, is based upon an assumed legal presumption that a person is charged with having seen what he might have seen had he looked, and with having heard what he might have heard had he listened; and, in the event such person is injured, negligence is imputed to him. This cannot be the law of this case. If appellee had seen the approaching car when at such a distance from the crossing that it might easily have been stopped had it been moving at a lawful rate, he might have been able to have crossed the track in safety, or the car could have been stopped. At any rate the street railway company had no superior right to cross this crossing in preference to individuals in vehicles, except that the street car cannot turn from the track to accommodate those about to cross its track. Had the vital part of this instruction been properly qualified, it might have been given to the jury, except that the essence of this instruction was covered by instruction 32, given at the request of appellant, and instruction 9 upon the court's own motion.

[3] Instruction 38 is a garbled quotation from the case of McGee v. Ry. Co. (1894) 102 Mich. 107, at page 115, 60 N. W. 293, at page 295 (26 L. R. A. 300, 47 Am. St. Rep. 507). The instruction is as follows:

“In this state the law is laid down as well settled that the persons passing on or crossing railroad crossings must exercise care. They must look and listen and under certain circumstances must stop before attempting to cross. Electric street car crossings are also places of danger. The cars are run at a great speed in a street, and the rule must be, before coming upon such tracks, every person is bound to look and listen.”

The language of the McGee Case, supra, from which the instruction was taken, is as follows:

“In this state it is well settled that persons passing over railroad crossings must exercise care. They must look and listen, and, under certain circumstances, must stop, before attempting the crossing. Electric street car crossings are also places of danger. The cars are run at great speed on this street in question. The city ordinance permits it, and the rule must be that, before going upon such tracks, every person is bound to look and listen.”

The language in the opinion of the McGee Case supra, which precedes that part last quoted is as follows:

“We see no more reason for applying the rule that one must look and listen before crossing the tracks of a steam railway than that one must look and listen before crossing a street car track upon which the motive power is electricity or the cable.”

This is not the law of this state. The duty to look or listen, or both, and to stop in order to use these senses, before crossing the right of way of a steam railroad, is not the rule which governs the right of pedestrians and those riding in or driving vehicles when approaching or crossing the tracks of a steam railroad at a public street intersection. The duty of such persons is no higher or different in law from the duty of the company which operates the street car, except that the street car is confined to its track. Duetz v. Louisville, etc., Tract. Co. (1910) 46...