Young v. Citizens' St. R. Co.

• Decision Date: 13 October 1896
• Citation: 44 N.E. 927,148 Ind. 54
• Parties: YOUNG v. CITIZENS' ST. R. CO.
• Court: Indiana Supreme Court

148 Ind. 54

44 N.E. 927

YOUNG

v.CITIZENS' ST. R. CO.¹

Supreme Court of Indiana.

Oct. 13, 1896.

Appeal from circuit court, Hancock county; Charles G. Offutt, Judge.

Action by Richard N. Young against the Citizens' Street-Railroad Company. Judgment for defendant. Plaintiff appeals. Affirmed.

McCullough & Spaan, Christian & Christian, and R. A. Black, for appellant. W. H. Latta and Miller, Winter & Elam, for appellee.

McCABE, J.

This was an action begun by the appellant against the appellee in the superior court of Marion county to recover damages alleged to have been sustained by the plaintiff through the negligence of the defendant. The venue was changed to the Hancock circuit court, where the issues were tried by a jury, resulting in a special verdict under the recent statute, assessing the plaintiff's damages at $12,500 conditionally. The circuit court overruled the plaintiff's motion for judgment in his favor on the special verdict, and sustained the defendant's motion for judgment thereon in its favor, and rendered judgment accordingly; and the only error assigned is upon these rulings.

The only question presented by the briefs for our decision is whether the special verdict finds facts sufficient to show that the plaintiff was free from fault or negligence contributing to his injury. He had alleged in his complaint, without which, or the substantial equivalent thereof, it would have been totally insufficient, that he “did not in any manner, by any negligent conduct or fault on his own part, contribute to the injuries” complained of. The special verdict is very long, consisting of 156 questions and answers thereto; therefore the substance thereof will be given. Such substance is as follows: The defendant owned and operated an electric street railway on West Washington street, running east and west, in the city of Indianapolis, Ind., extending west beyond White river during the month of May, 1894. The line was double-tracked in the middle of said street, 80 feet wide from property line to property line. The trolley wires conveying the electric power were hung on iron poles 18 feet high, 5 inches in diameter at the top of the ground, and 3 inches at the top of the poles, standing 125 feet apart equidistant between the double tracks; such tracks being 4 feet and 10 inches apart. The gauge of the street-railroad tracks was 4 feet and 8 1/2 inches. There was a gang of men working for the Manufacturers' Natural Gas Company putting gas pipe into a trench dug about three feet north of and parallel with the north track of said street-car line. The street cars ran west on the north track and east on the south track. One of the defendant's cars running east on the south track of said line on the 15th day of May, 1894, struck appellant, and inflicted the injury complained of. It seems to be conceded that the motorman was guilty of negligence in not sounding the gong, as it is called, on approaching the appellant, so as to warn him of danger. The car was going at the rate of speed of 10 to 12 miles an hour. For a distance of 200 feet west of the point of said collision the tracks descended 3 inches. Just before the collision, the plaintiff quit his work, and walked south, near to the north rail of the south track, opposite to where he had been working, and looked attentively to the west to see if any car was coming from that direction on the south track. He saw 400 feet west. There was a street car coming east. There was nothing to obstruct his vision, or prevent his seeing a car coming east on Washington street. After plaintiff walked to a point near the north rail of the south street-car track, he turned, and walked towards the east 25 feet. After he started to walk east along or near the north rail of the south track, until he was struck by the street car, he did not look to the west for an approaching car. The motorman did not see him, or give any warning. When he last looked west, the car was 528 feet west of him. After the plaintiff quit work, and before the collision, he listened for an approaching street car. There was nothing to prevent the plaintiff from hearing the approach of the street car with which he collided, before the collision, and he was not prevented from hearing it. The verdict states that plaintiff was facing east when he was struck, and yet it states that the left side of the car struck him on his left side. That was impossible, if he was facing east. He must have been facing west, towards the approaching car, or at least facing north or northeast. The 122d and 123d interrogatories and answers thereto are as follows: “(122) Did the plaintiff, at said times, or either of them, see any street car approaching from the west, or on said south track? Ans. No. (123) Did he, at said times, look as far west as 300 or 400 feet? Ans. Yes.” And the 131st interrogatory and answer read as follows: “Did he hear said car, or gong thereof, as it approached at the time he was struck? Ans. No.” Another interrogatory and answer were as follows: “(53) If he looked, was there anything to obstruct his vision, or prevent his seeing a car coming east on Washington street? Ans. Line poles.” If this answer is to be construed as contradicting that answer saying that there was nothing to prevent him seeing the car coming on Washington street, it would have the effect to destroy both...