Elgin Dairy Co. v. Shepherd

Cox, J. — Appellee recovered a judgment against appellant in the trial court for personal injuries sustained by him in a collision between a motorcycle on which he was riding and a motor truck then in use by appellant in its business and driven by one of its employes. The collision happened at the intersection of Twenty-fourth and Bellefontaine streets in the city of Indianapolis while appellee riding on his motorcycle was crossing Bellefontaine street. "With a general verdict for appellee, the jury returned answers to interrogatories. Appellant moved for judgment on these answers notwithstanding the general verdict. This motion was overruled and this ruling presents the first error assigned and urged as cause for reversal. 1. In support of this assignment of error it is contended that the answers to the interrogatories establish facts from which the court must say as a matter of law that appellee was guilty of contributory negligence. The material facts established by the answers upon which this claim is based are as follows: At the street intersection in question the roadway of Bellefontaine Street is twenty-nine feet wide between curbs and Twenty-fourth Street twenty-three feet wide. Appellee was riding east on the' south .side of Twenty-fourth Street and when about twelve feet west of the west curb of Bellefontaine Street, or twenty-five feet from the center he looked north and saw appellant’s truck coming from the north on the west side of Bellefontaine Street about fifty feet north of Twenty-fourth Street. He was then entering Bellefontaine Street at the intersection and looked [470] south almost immediately and then continued eastward to cross Bellefontaine Street without again looking to the north. He did not look enough to ascertain the speed of the truck. He traveled across the street at a speed of eight miles an hour. Appellant’s truck came down Bellefontaine Street and entered the intersection at a speed of fifteen miles an hour. It did not continue south on tlie west or right hand side of the street all the way before the collision but turned to the left and struck appellee’s vehicle at a point fifteen feet east of the west curb line of Bellefontaine Street, or 6 inches east of the center line of the street. It did not slow up before the collision. The jury specifically answered one interrogatory that it was not a close question whether appellee would cross in safety' after seeing the truck if it kept on at the same speed. These facts, it is claimed by counsel for appellant, show that appellee took a desperate chance in attempting to cross the street in the face of the oncoming truck and that he should have continued to observe its progress toward their lines of crossing and that therefore he was injured by his own want of due care. One of the charges of negligence against appellant on which appellee’s complaint was founded was the violation of a city ordinance which required such vehicles as those involved in this case and others (except street cars), to keep to the right side of streets and made it unlawful to drive along the middle or left side thereof. Now it is clear, from facts stated above, that this collision would not have taken place if appellant’s employe in charge of the truck had continued in compliance with this ordinance. Appellee, when he saw the approaching truck, had only twenty-five feet to go to clear the center line of Bellefontaine Street. He was on a line south of the center line of Twenty-fourth Street. At that time the truck was, in obedience to the ordinance, on the west or right side, for it, of Bellefontaine Street, fifty feet north of Twenty-fourth Street, more than sixty feet north of the center line of the latter street and still further from a point in the street inter [471] section towards which, the truck was traveling and which appellee would have to cross in pursuing his way eastward. The truck was-going at less than twice the speed of appellee’s vehicle and it had considerably more than twice the distance to travel to pass this point than appellee had. It is manifest, therefore, that had the two vehicles continued as they were going appellee would widely have cleared the crossing point of the lines on -which they were going before the truck reached it. That he did not was due alone to the action of the truck driver in changing his course. Certainly, until the contrary appeared, appellee was entitled to assume that appellant’s employe would continue in obedience to traffic rules and was not required to be alert and watch for violation of them. He had looked north first, the direction from which he would naturally first encounter danger of collision and then south the direction from which he might later meet vehicles coming to the intersection. Under the facts found it was, to say the least, for the jury to determine whether he was guilty of eontribirtory negligence and this it did favorably to the appellee by the general verdict for him. The answers rather support than conflict with the general verdict. 2. 3. The action of the court in overruling appellant’s motion for a new trial is assigned as error. A cause relied on for a new trial was the insufficiency of the evidence in fact and law to support the general verdict. Error in this particular is urged on the same claim of appellee’s contributory negligence as that just eonsidered in the ruling on the motion for judgment on the answers. The evidence, without material conflict, establishes the facts substantially as found by the answers as above stated. And to these may be added the facts, also shown in substance without dispute by the evidence, that just before the collision the truck driver changed the straight southward course of the truck to the southeast and struck the rear wheel of appellee’s motorcycle with the left front wheel of the truck at a point in the street intersection a [472] little south, of the center line of Twenty-fourth Street and east of the center line of Bellefontaine Street. The evidence gives no indication of an intention on the part of the truck driver to turn and go east on Twenty-fourth Street but to the contrary that his destination led him south on Bellefontaine Street beyond Twenty-fourth Street. He testified that he turned .from about two feet east of the west curb of Bellefontaine Street on which line he had been driving the truck to avoid a delivery wagon coming from the south on the east side of the center of Bellefontaine Street which was still south of Twenty-fourth Street, a most unusual and obviously negligent performance, as due care,— the positive provisions of the ordinance and the ordinary law of the road would have required him to remain in the line he was going. Upon these facts it is manifest that the jury was well within its province in determining that appellee’s injuries were due to the negligence of appellant’s employe in charge of its truck and that appellee was not guilty of negligence which contributed thereto. 4. The giving of certain instructions, was made several causes for a new trial. By instruction No. 5, which went to the question of appellant’s negligence, and which is the first one complained of as erroneous, the jury was told that “reasonable care or ordinary care, is that degree of care which an ordinarily prudent person similarly situated, would or ought to have exercised under the circumstances surrounding the transaction under investigation.” It is urged that the words in the instruction, which we have italicized, enabled the jury to set up a higher degree of care for the appellant than the law warrants and therefore rendered the instruction erroneous and presumptively harmful. "Without the words in question the instruction correctly states the test by which ordinary care is to be measured and the use of these words opens the instruction to criticism. It is, however, a minor inaccuracy of statement [473] which it is quite-manifest from the undisputed facts worked no harm to the appellant. 5. [474] 6. 7. 5. [473] In instruction No. 12 the jury was told in substance that if it found from the evidence the existence, in force, of the ordinance counted upon by the complaint, then in the absence of knowledge to the contrary appellee had a right to presume that appellant would perform any duty imposed by such ordinance at the street intersection. Counsel for appellant treats the instruction as conveying to the jury that the appellee was entitled to presume that appellant’s driver would continue southward on the west or right hand side of the street and doubtless, in view of the facts- involved, it is the correct intent of the instruction. It is argued by counsel that if the driver had desired to turn and travel east on Twenty-fourth Street or if there had been a vehicle ahead which required it, he could rightfully have turned to the left side of the street. It is enough to say that neither of these hypotheses existed. The court was instructing the jury as to the law on the facts before it and the uncontradicted evidence showed neither an intention on the part of the driver to turn east on Twenty-fourth Street nor the presence of any vehicle ahead of him which would have required him to turn to the left of the line he was traveling along. Appellee, before entering upon the intersection saw the truck coming southward on the right side of the street and there being nothing present in the situation to suggest a change in its course he was not bound to anticipate it but was entitled to act on the assumption that the truck driver would continue in obedience to the ordinance in this particular. The ordinance in this particular is substantially but a declaration of the ordinary rule of the road to keep to the right which has been held to apply at street intersections as well as at other points. Cook Brew. Co. v. Ball (1899), 22 Ind. App. 656, 665, 52 N. E. 1002. Keeping the rule of the road or the command of the ordinance are [474] alike usually required of the user of the highway in discharging the duty of using ordinary care not to injure others lawfully using such highway. This being so no error was committed in giving the instruction in question for the rule is that one lawfully using a public street has, in the absence of knowledge to the contrary, the right to presume that others using it in common with him will use ordinary care to avoid injuring him. Rump v. Woods (1912), 50 Ind. App. 347, 98 N. E. 369; Indianapolis St R. Co. v. Hoffman (1907), 40 Ind. App. 508, 82 N. E. 543; Indianapolis St. R. Co. v. Bolin (1906), 39 Ind. App. 169, 178, 78 N. E. 210. In the absence of a regulation to the contrary, the general rule is that the one reaching a street intersection first has the right of way. Appellee, it is clear from the uncontradicted facts, reached the street crossing first and in determining whether he could safely avail himself of his right to cross over the intersection of the streets he was not bound to anticipate a sudden violation of the ordinance or the rule of the road by appellant’s employe, which would invoke a danger to appellee which was not then apparent. 8. [475] 9. [476] 10. [474] Instruction No. 16 given by the court is assailed. In this instruction the jury was told that ‘‘ each of the parties hereto was required to exercise the reasonable care of an ordinarily prudent person, and either party had the right to assume that the other would' do the duty required of him, and he would have had the right to act on that assumption”. The first clause of this instruction is not criticised and is not open to criticism. The rest of it is assailed on much the same ground as the one just above considered and on the additional grounds that it omits the element of the effect of knowledge on the part of one party that the other is not exercising due care and omits any other want of care on part of appellee. The instruction as it stands is substantially in the language in which the law applicable to the use of streets and other highways has very generally [475] been declared and frequently stated in instructions. 2 R. C. L. 1185, §20; 28 Cyc. 27; Davids, Motor Vehicles §95; Berry, Law of Automobiles §131; Huddy, Automobiles (3d ed.) §99; Daniels v. Clegg (1873), 28 Mich. 32; Reilly v. Brooklyn Heights R. Co. (1901), 65 App. Div. 453, 72 N. Y. Supp. 1080; Baker v. Fehr (1881), 97 Pa. St. 70; Thies v. Thomas (1902), 77 N. Y. Supp. 276; Buhrens v. Dry Dock, etc., R. Co. (1889), 53 Hun 571, 6 N. Y. Supp. 224; Schimpf v. Sliter (1892), 64 Hun 463, 19 N. Y. Supp. 644; Spangler v. Markley (1909), 39 Pa. Sup. Ct. 351; Diamond v. Cowles (1909), 174 Fed. 571, 98 C. C. A. 417; Harpell v. Curtis (1850), 1 E. D. Smith 78; Hennessey v. Taylor (1905), 189 Mass. 583, 76 N. E. 224, 3 L. R. A. (N. S.) 345; Rogers v. Phillips (1910), 206 Mass. 308, 92 N. E. 327, 28 L. R. A. (N. S.) 944; Franey v. Seattle Taxicab Co. (1914), 80 Wash. 396, 141 Pac. 890; Mikelson v. Fischer (1914), 81 Wash. 423, 142 Pac. 1160; Williamson v. Old Colony St. R. Co. (1906), 191 Mass. 144, 77 N. E. 655, 5 L. R. A. (N. S.) 1081, note; Gilbert v. Burque (1904), 72 N. H. 521, 57 Atl. 927; Minneapolis St. R. Co. v. Odegard (1910), 182 Fed. 56, 104 C. C. A. 496; Robinson v. Western Pac. R. Co. (1874), 48 Cal. 409, 421; Arseneau v. Sweet (1908), 106 Minn. 257, 259, 119 N. W. 46; Brewster v. Barker (1909), 129 App. Div. 724, 113 N. Y. Supp. 1026; Benoit v. Miller (1907), 67 Atl. 87; Kathmeyer v. Mehl (1905), 60 Atl. 40; Hodges v. Chambers (1913), 171 Mo. App. 562, 570, 154 S. W. 429; Schaffer v. Baker Transfer Co. (1898), 29 App. Div. 459, 51 N. Y. Supp. 1092; Stringer v. Frost (1889), 116 Ind. 477, 480, 19 N. E. 331, 9 Am. St. 875, 2 L. R. A. 614; Rump v. Woods, supra; Indianapolis St. R. Co. v. Hoffman, supra; Indianapolis St. R. Co. v. Bolin, supra. The mere fact that the instruction is double and is addressed alike to both parties argues nothing against its correctness. And if it did, it would not avail appellant for it could not of course complain of the instruction to the extent that it spoke for the appellant. To the extent that it was for ap [476] pellee, it is sustained by the overwhelming weight of authority. It is true, however, that the rule so announced is modified in cases where the facts show that a party using a public street sees, or by the use of ordinary care should have seen, that another is not in the exercise of ordinary care. In such a ease that party can no longer rely on the presumption, but he must take such reasonable care as. he can under the circumstances to prevent a collision and injury. 2 Elliott, Roads and Sts. (3d ed.) §1082; 2 R. C. L. 1185, §20. 8. 11. The instruction does not absolve either party from the exercise of due care generally, but does expressly hold them to it. As said in Harpell v. Curtis, supra, “in the use of a public highway, a party has the right to expect from others ordinary prudence, at least, and to rely upon that in determining his own manner of using the road; not to justify his own foolhardiness, but to warrant him to pursue his own business in a convenient manner where he has no reason to suppose the convenience or safety of others will be prejudiced thereby.” But if it be conceded that the instruction falls short of stating the rule fully, with the qualifications of' it under different conditions, still it does not result that the omission will compel a reversal of the case. Two reasons intervene to prevent. The first of these is that the instruction was not incorrect but was merely incomplete and it was supplemented, in all of the particulars of which complaint is made, by other instructions, part of them given on request of appellant, which were as favorable to appellant as the law' authorizes. Among these were instructions Nos. 19 to 22. The second reason is that the uneontroverted facts make it appear that when appellee saw appellant’s truck approaching the crossing the driver was not then failing in the duty of using reasonable care in that respect which produced the collision, and that when the driver did so fail appellee could not then, by using reasonable care, have avoided the consequences. The jury [477] finds and the facts justify the finding that appellee did not take a culpably close chance in attempting to cross ahead of the truck and this we think must with the other facts absolve him from the charge of a failure to exercise reasonable care. 12. Complaint is also made of the refusal of the court to give instructions Nos. 8 and 9 requested by it. In so far as they stated the law correctly they were in material substance covered by others given. Jt is very clear that in the cause for a new trial which is based on the misconduct of counsel in argument to the jury appellant has no cause for reversal. Vandalia Coal Co. v. Price (1912), 178 Ind. 546, 97 N. E. 429; Buffkin v. State (1914), 182 Ind. 204, 106 N. E. 362. Judgment affirmed. Lairy, J., dissenting. Morris, J., not participating.