Conder v. Griffith , 61 Ind. App. 218 ( 1916 )

Felt, P. J.

This is an appeal from a judgment obtained by appellee against appellant for personal injuries, alleged to have been caused by appellant’s, negligence in driving his automobile into and against appellee while he was crossing a street in the city of Indianapolis. The errors assigned and relied on for reversal are, the overruling of appellant’s motions for judgment on the answers to interrogatories and for a new trial.

The complaint was in two paragraphs on which issues were joined by general denial. The facts disclosed by the complaint are as follows: On May 1, 1912, appellee was employed by the Indianapolis Traction and Terminal Company, as a motorman. The company owned and operated a double-track car line running east and west on East 10th Street, in the city of Indianapolis. The south track was used by east bound cars and the north track byjwest bound cars. On the day in question appellee was operating an east bound car and stopped it opposite a fire-engine house located on the north side of the street. When the car stopped he alighted and started to cross in front of the street car on his way to the engine house when appellant approached from the west and collided with him. The negligence charged in each paragraph of complaint is that appellant negligently and carelessly drove his automobile on the north side of said street and negligently and carelessly, and in violation of the State law, drove the automobile east on the left side of the street and at the rate of twenty miles an hour, and without knowledge or warning, ran against, upon and over appellee thereby inflicting the injuries of which he complains. The first paragraph also charges that such conduct was in violation of a certain ordinance of the city of Indianapolis, then in full force and effect, which provides that it shall be unlawful for all riders and drivers of vehicles whether such vehicles are drawn or propelled by animal or other power, to ride or drive on, over and along the middle, or on, over and along the left side of any street in the city of Indianapolis, except in the necessary act of crossing the same, or of passing a. vehicle going in the same direction; that all such riders and drivers shall keep as nearly as practicable to the right of such street, but the provisions of this section shall not apply to street railways. That any such person using any of the streets of the city of Indianapolis when met by any other vehicles, shall keep to the right, and when overtaken by any vehicle shall likewise keep to the right, allowing such rider or driver to pass Mm to the left, so as to permit such vehicles to pass free and umnterrupted.

1. Under the assignment that the court erred 'in overruling appellant’s motion for a new trial, appellant contends that the court erred in giving to the jury instruction No. 11 which is as follows: “It is provided by the law of our State as follows: That any person or persons operating a motor vehicle, shall, upon meeting any person or persons riding, leading, or driving a horse, horses, or other draft ammals, or other farm ammals on any public Mghway, not operate it at a speed to exceed six miles an hour. A violation of this law is negligence, and if you find from, a fair preponderance of the evidence in tMs ease that the defendant violated tMs law and that the plaintiff did not contribute to his injury in any degree by his want of ordinary care and prudence, and such want of care and negligence was the proximate cause of plaintiff’s injury then your finding should be for the plaintiff.” The act of 1907 (Acts 1907 p. 558, §10468 Burns 1908), in force when the alleged injury was received, provides as follows: “That any person or persons operating a motor.vehicle shall, upon meeting any person or persons riding, leading or driving a horse, horses or other .draft ammals or other farm ammals on any public highway, proceed at a speed not to exceed six miles per hour until past such horses, or other draft ammals or other farm animals, and upon request or signal by putting up the hand from any such person, or persons so riding, leading or driving any horse, horses or other draft animals or other farm animals (if in sufficient light for such signal to be perceptible) immediately bring his motor vehicle to a stop and remain stationary so long as may be reasonable to allow such horse, horses or other draft animals or other farm animals to pass.” Another section of the statute then in force limited the speed of automobiles to eight miles an hour in the business and closely built up part of the city and to fifteen miles per hour in other portions of the city. The complaint charges that appellant was operating his automobile in violation of the State law, and that the court by instruction No. 11 told the jury that he was negligent if he violated the foregoing statute which limits speed to six miles per hour under the conditions specified; that if such negligence w.as the proximate cause of appellant’s injury he could recover, if he was not himself guilty of contributory negligence. The provisions of the statute referred to in the instruction have no application to the case made by the complaint or the evidence and it was therefore error to give the instruction. Baltimore, etc., R. Co. v. Peck (1913), 53 Ind. App. 281, 285, 100 N. E. 674; Indiana R. Co. v. Maurer (1903), 160 Ind. 25, 31, 25 N. E. 156; Indianapolis Traction, etc., Co. v. Mathews (1912), 177 Ind. 88, 107, 97 N. E. 320.

2. 3. 2. 4. 5. 6. Instruction No. 12 given by the trial court relates to certain provisions of the city ordinance mentioned in the complaint, to the effect that it shall be unlawful for vehicles drawn by animal or other power to ride or drive on, over and along the middle or on, over and along the left side of any street, etc., “except in the necessary act of crossing the same or passing a vehicle going in the same direction; and all such riders and drivers shall keep as nearly as practicable to the right side of the street, but the provision of this section shall not apply to street railways.” A vehicle is any carriage or conveyance used or capable of being used' as a means of. transportation on land. The word “vehicle” will not ordinarily include locomotives, cars and street cars which run and are operated only over and upon a permanent track, or fixed way, and it will not be held to include them unless the context of the ordinance or statute clearly. indicates an intention to .do so. 8 Words and Phrases 7284; Century Dict. “Vehicle”; Whitaker v. Eighth Ave. R. Co. (1873), 51 N. Y. 295, 298; Heib v. Town of Big Flats (1901), 66 App. Div. 88, 73 N. Y. Supp. 86, 87; Baltimore, etc., R. Co. v. District of Columbia (1897), 10 App. Cas. (U. S.) 111, 120; Duckwall v. City of New Albany (1865), 25 Ind. 283, 286; Mercer v. Corbin (1889), 117 Ind. 450, 454, 20 N. E. 132, 10 Am. St. 76, 3 L. R. A. 221. The court told the jury that a violation of this ordinance by appellant was negligence and, if such negligence was the proximate cause, of appellee’s injury, he could recover unless he was guilty of negligence contributing to his injury. The undisputed evidence shows that when the street car stopped at the engine house, which was not a regular stop for taking on and discharging passengers, the passageway on the right or south side of the street was blocked by a lumber wagon at the time opposite the street car. Instructions should not only state correct principles of law but they should be applicable to the issues and facts of the particular case in which they are given. Instruction No. 12 states correctly an abstract proposition of law, for the general rule is that the violation of a statute or ordinance which is the proximate cause of an injury is negligence per se. Hamilton, Harris & Co. v. Larrimer (1915), 183 Ind. 429, 105 N. E. 43; Cincinnati, etc., R. Co. v. Butler (1885), 103 Ind. 31, 37, 2 N. E. 138; Cincinnati, etc., R. Co. v. Hiltzhauer (1885), 99 Ind. 486, 487; Louisville, etc., R. Co. v. Davis (1893), 7 Ind. App. 222, 232, 33 N. E. 451. While the general rule is as above stated, and the violation' of such statute or ordinance is prima facie negligence per se, nevertheless there may be facts and circumstances which will excuse a technical violation of an ordinance or statute and render it improper for the court to declare as a matter of law that such violation constitutes actionable negligence. It may be said that facts which will excuse such technical violation must result from causes or things beyond the control of the person charged with the violation. In such instances there may or may not be actionable negligence and it is a question of fact, to be determined by the court or jury trying the ease, from all the facts and circumstances shown by the evidence, (1) whether there was a sufficient and reasonable excuse for such violation, and (2) whether in doing, or omitting the act complained of, the defendant was in fact guilty of actionable negligence. We do not find any direct authority for so stating the foregoing exception to the general rule that the violation of a statute, or ordinance resulting in an injury, is negligence per se, but reasoning by analogy, and on principle, such exception should be recognized, is reasonable, and tends to promote justice and the practical enforcement of the spirit and purpose of the statutes and ordinances to which reference is made. Such 'ordinances and statutes as the one now under eonsideration should receive a reasonable construction consistent with the purpose of their enactment and 'the practical difficulties that arise in their application to particular eases.

2. In the ease at bar, the undisputed fact of the obstruction on the south side of the street opposite the street car should have been taken into account and the question should have been submitted to the jury to determine as a question of fact, (1) whether under the circumstances appellant had a reasonable excuse for driving on the left side of the car contrary to the provisions of the ordinance, and if so, whether in so doing he exercised reasonable and ordinary care for the safety of others upon the street. In Indianapolis St. R. Co. v. Slifer (1905), 35 Ind. App. 700, 74 N. E. 19, this court considered a ease involving the ordinance now under consideration and after setting out its provisions said: “The court instructed the jury that if it found such ordinance to have been in force, and that at the time of the accident appellee was traveling upon the left side of the street in violation thereof, then he would be guilty of such contributory negligence as would bar his recovery for damages received while thus violating such ordinance and received in consequence of such violation, unless it should also' find that the right side of the street was in such condition as to render it impracticable or unsafe to travel thereon, in which case he would not be chargeable with negligence solely because he was traveling on the left side of the street. The ordinance required drivers of vehicles ‘to keep as nearly as practicable to the right side of such street.’ If appellee did this, there was no violation either of the letter or the spirit of the ordinance. The ordinance itself contemplated conditions under which its observance would not be practicable. Whether he did it or not was, under the evidence, a question of fact.” As bearing somewhat on the question by-analogy, see, also, Young v. Citizens St. R. Co. (1897), 148 Ind. 54, 63, 44 N. E. 927, 47 N. E. 142; Marsh v. Boyden (1912), 33 R. I. 519, 524, 82 Atl. 393, 40 L. R. A. (N. S.) 582; Siddall v. Jansen (1897), 168 Ill. 43, 48 N. E. 191, 39 L. R. A. 112, 114; 29 Cyc 436; 1 Thompson, Negligence §§1289, 1290, 1306, 1307.

We have examined the answers to the interrogatories and do not think the court erred in overruling the motion for judgment thereon. In any event, on the record presented, we think the ends of justice will be subserved by ordering a new trial of the case. The judgment is therefore reversed with instructions to sustain appellant’s motion for a new trial. Ibach, C. J., Caldwell, Moran, Hottel and Shea, JJ., concur.

Note. — Reported in 111 N. E. 816. As to temporary street obstructions and encroachments, see 107 Am. St. 248. As to statutory duty and liability of person operating automobile in street, see 1 L. R. A. (N. S.) 223; 4 L. R. A. (N. S.) 1130. As to effect of violation of statute or ordinance regulating speed limit of automobiles in street, as negligence, see 25 L. R. A. (N. S.) 40. As to violation of statute or ordinance not intended for plaintiff’s benefit as actionable negligence, see 9 Ann. Cas. 427; Ann. Cas. 1912 D 1106. As to rights and duties of persons driving automobiles in highways, see 13 Ann. Cas. 463; 21 Ann. Cas. 648. See, also, under (1) 28 Cye 646; (2) 29 Cye 645; (3) 39 Cye 1125; (4) 38 Cyc 1612; (5) 29 Cyc 436, 439; (6) 36 Cyc 1110.