Indianapolis Street Railway Co. v. Zaring ( 1904 )

Wiley, J.

This cause originated in the Marion Superior Court, from whence it was venued to the court below. Appellee’s decedent was riding a bicycle on one of the public streets of the city of Indianapolis, and while attempting to cross appellant’s tracks he came into collision with one of its cars, and was killed. Appellee prosecuted this action to a successful termination in the court below to recover damages for the death of his decedent, which was imputed to appellant’s negligence. As no question is argued touching the sufficiency of the pleadings, they need not be noticed in this connection. Trial hy jury, verdict and judgment for appellee for $850. The jury found specially, also, by answers to interrogatories. Appellant’s motions for judgment on the answers to interrogatories and for a new trial were overruled. The only questions argued arise under the assignment of error questioning the correctness of these rulings.

The negligence imputed to appellant was the the careless and reckless operation of one of its cars being run on Virginia avenue, as it approached the intersection of Louisiana and New Jersey streets, in that it was run at a dangerous and reckless rate of speed, and that no warning was given to appellee’s decedent of its approach, by the sounding of the gong or otherwise. There are many facts found, as disclosed by the answers to interrogatories, that are wholly unessential and immaterial to the determination of'the legal questions involved. Those questions are: (1) Do the special facts found show that appellant Was guilty of the negligence charged? (2) Do they show that appellee’s decedent was free from negligence ? If they do, then such special findings are in harmony with the general verdict. But if they disclose the fact that appellant was thus negligent, and that the decedent was guilty of negligence that contributed to his death, then there is irreconcilable conflict between the general verdict and the answers to interrogatories. In such case the rule is firmly established that, though the defendant was guilty of the negligence imputed to it, yet, if the plaintiff was at fault, he can not recover.

The facts specially found do not overcome the general verdict as to the negligence of appellant. On the contrary, by them its negligence is emphasized, for it is shown that it ran its car over and upon a public street at the rate of twenty miles per hour, approaching the intersection of three streets, where persons on foot and in vehicles were likely to be traveling in different directions, and apparently heedless of the rights of travelers on such streets. Such conduct must be regarded as negligence.

The remaining question — the decedent’s negligence or non-negligence — is more difficult to determine. The facts upon which the determination of this question depends may be summarized as follows: The decedent was a man of mature years and judgment, and was in the possession of his senses of hearing and seeing. He was a man of average strength, judgment, and intelligence. The accident occurred in Virginia avenue where it intersects Louisiana and New Jersey streets. Said avenue runs northwest and southeast, is fifty feet wide between the curbs, is paved with asphalt, and has sidewalks on either side twenty feet wide. Along said avenue there are two street car tracks, and cars were operated frequently thereon. New Jersey and Louisiana streets are ninety feet wide from property line to property line where they intersect with Virginia avenue, and at said intersection a large space is formed at that point. There is a heavy grade from the intersection of the three streets on Virginia avenue leading to and over the viaduct. Decedent was riding a bicycle, and was a competent and experienced rider. He could have stopped his bicycle in a distance of ton feet, at the rate of speed he was going. He was familiar with the location and surroundings, and knew that cars Were frequently passing to and-fro on the double tracks on Virginia avenue. He was riding six to eight miles per hour. There were two wagons on the street, and he increased his speed so as to pass around them. lie approached Virginia avenue from the south, riding north on New Jersey street. The jury found that the two wagons in the street obstructed decedent’s view of the approaching car only while he was riding a distance of ten feet, and that there was nothing else to obstruct such view at any time. The car that struck him was going southeast, and running down the incline from the viaduct. From the point of the collision to the top of the viaduct was about five hundred feet. There was nothing to prevent his view after he passed in front of the wagons. He looked toward the viaduct after he passed the west property line of Virginia avenue, when he got within fifteen feet of the track. The car that struck him was about fifteen feet high and seven and one-half to eight feet wide. If decedent had listened, he could have heard the noise made by the car for a distance of 100 feet. He was fifteen feet from the west rail of the west track when his view of the west track, looking toward the northwest, was first interfered with by the wagons. "When he Was at the west property line of the avenue the car that struck him was 250 feet from the point of collision, and when he was at said property line he could have seen the west track, in the direction of the viaduct, for a distance of 500 feet. When he was at the west curb line of the avenue the car was 120 feet from the point of collision. There were no objects in the west roadway of the avenue, or on the west sidewalk between the place where he crossed the roadway and the top of the viaduct, that in. any way obstructed the view between him and the approaching car, except the two wagons. The highest point of one of the Wagons was six and one-half feet and the other six feet.

These facts disclose two controlling conditions: (1) That at all times after he had entered on Virginia avenue the decedent could have seen the approaching car if he had looked, except while he was riding a distance of ten feet, when the wagons were between him and the car; and (2) he could have heard the noise of the car for a distance of 100 feet, if he had listened. At the speed he was riding — and it is found he increased his speed to eight miles an hour as he passed the wagons — his view was obstructed only momentarily. Such view was obstructed, as the jury finds, while he was riding a distance of ten feet. At eight miles an hour he would ride ten feet in eighty-five hundredths of a second, so his view was obstructed for only eighty-five hundredths of a second, and, with that exception, his view was unobstructed while he rode from the west property line to the point of collision. These facts .present a case where it would seem that the deceased was attempting to cross the avenue in front of the wagons, and that he was oblivious to any danger of collision with a street car. He could have seen the approaching car if he had looked, and heard it if he had listened, in time to have avoided the collision. His failure to see or hear, under the facts specially found, and the authorities in this State, must be adjudged negligence on his part. As he could have seen if he had looked, and heard if he had listened, it will be presumed, that he did not look, or, if he did, he did not heed what he saw; and that he did not listen, or, if he did, that he did not heed what he heard. Such conduct is held to be negligence per se. The following authorities support the conclusion we have reached, that appellee’s right to recover must be denied on,account of the negligence of his decedent: Ohio, etc., R. Co. v. Hill, 117 Ind. 56; Cones v. Cincinnati, etc., R. Co., 114 Ind. 328, 330; Lake Erie, etc., R. Co. v. Stick, 143 Ind. 449; Young v. Citizens St. R. Co., 148 Ind. 54; Citizens St. R. Co. v. Helvie, 22 Ind. App. 515; DeLon v. Kokomo City St. R. Co., 22 Ind. App. 377; Pittsburgh, etc., R. Co. v. Fraze, 150 Ind. 576, 65 Am. St. 377; Oleson v. Lake Shore, etc., R. Co., 143 Ind. 405, 32 L. R. A. 149; Chicago, etc., R. Co. v. Thomas, 155 Ind. 634; Indianapolis St. R. Co. v. Tenner, 32 Ind. App. 311.

The judgment is reversed, and the court below is directed to sustain appellant’s motion for judgment on the answers to interrogatories.

Black, C. J., Comstock, Robinson, and Henly, JJ., concur. Roby, P. J., dissents.