Union Traction Company of Indiana v. Moneyhun
| Decision Date | 27 June 1922 |
| Docket Number | 24,065 |
| Parties | Union Traction Company of Indiana v. Moneyhun |
| Court | Indiana Supreme Court |
From Madison Circuit Court; Luther E. Pence, Judge.
Action by John P. Moneyhun against the Union Traction Company of Indiana. From a judgment for plaintiff, the defendant appeals. (Transferred from the Appellate Court under § 1394, cl. 2, Burns 1914, Acts 1901 p. 565.)
Affirmed.
J. A Van Osdol and Kittinger & Diven, for appellant.
Ellison & Neff, Beckett & Beckett and William S. Elliott, for appellee.
W. H Latta, M. E. Foley and D. E. Watson, Amica Curiae.
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 twelve 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 thirty 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 forty feet wide north and south by sixty feet in length 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 seventy 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 enclosed 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 five and six 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 eight or nine 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 twenty-five and thirty miles per hour, in spite of an ordinance of the city limiting the speed of electric cars to twelve 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 embankment of six inches; in operating the car at a speed of twenty-five miles per hour in violation of the ordinance of the city limiting the speed of electric cars to twelve 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.
Instruction No. 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 No. 32, given at the request of appellant, and instruction No. 9 upon the court's own motion.
Instruction No. 38 is a garbled quotation from the case of McGee v. Consolidated St. R. Co. (1894), 102 Mich. 107, 115, 60 N.W. 293, 295, 26 L. R. A. 300, 47 Am. St. 507. The instruction is as follows:
The language of the McGee case, supra, from which the instruction was taken, is as follows:
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 streetcar 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 street 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., Traction Co. (19...
To continue reading
Request your trial