DISSENTING OPINION. I am fully convinced that the evidence in this cause is not sufficient to sustain the verdict, and I must, therefore, dissent from the majority opinion. I am not unmindful of the rule that this court will not weigh the evidence, but this rule does not preclude the court from drawing reasonable conclusions from uncontradicted evidence, and, from such evidence, it clearly *Page 147 appears that appellee was not injured by any act of negligence on the part of appellant, and that her injuries were the result of her own negligence. The facts hereinafter stated are undisputed, except as indicated.
Appellant was driving an old Ford sedan in an easterly direction approaching the place where the accident occurred. His lights were dimmed as required by statute, because another car was approaching from the east. Appellee's witnesses testified that he was driving at a moderate rate of speed, about 15 miles per hour. Moderate means temperate, mild, gentle, reasonable (Webster). That his speed was reasonable is evident by the fact that he stopped his car in such a short distance. Appellee testified that it moved four feet after it struck her, and after repeating this statement a number of times, she said that the car passed her four feet. At the most, then, the car was stopped within 16 feet. After seeing appellee, appellant applied the two-wheel brakes of an old Ford sedan, and stopped it within 16 feet. It was surely traveling at a reasonable rate of speed. Appellee was not knocked or thrown any distance. She just "dropped straight down" or "crumpled down," where struck. Appellant was facing the light of an approaching car, with lights dimmed, and he did not see appellee until just as she came in contact with the fender of his car. The evidence that appellant's car was moving was by appellee's witnesses. All of appellant's witnesses, being the people in his car, testified that his car was not moving. But, for the purposes of the decision of this court, we must accept that the car was moving as above set out. The place where the accident occurred was not at a street intersection, and there was no place provided there for pedestrians to cross. On the contrary, there were automobiles parked along the south side of the street so thick that the parties along with appellee had to squeeze *Page 148 between them to get across. There was no reason for appellant to anticipate that appellee would be crossing at this place, which was not an intersection, and not a place at which it appeared that pedestrians should cross. As appellant did not see appellee, he owed her no duty to sound his horn. I find no evidence that appellant saw or should have seen appellee a distance of 30 or 40 feet from the place of the accident. On the contrary, the inference is that he did not see her, for he was facing the lights of another machine with his own lights dimmed. I fail to see that appellant was guilty of any act of negligence. We may well remark that he was not a "hit and run" driver. On the contrary, though disclaiming that he was to blame for appellee's injury, he helped to put her in his own car, and took her to the hospital, and did all that he could in the way of first aid.
Now, let us examine appellee's conduct, as disclosed by undisputed evidence, as to whether she was guilty of any negligence that caused her injury. Appellee started from the north side of the street, to cross it. Her grandson, J.W. Branham, was there with her, and she started across ahead of him. He testified that "she was walking at a moderate rate of speed, not hurrying or not dragging along." There was a bridge to the west about 300 feet, and this witness, being asked whether "you could see the bridge from where this happened," answered, "yes, sir." And again being asked "you could see, a clear view, along Thirtieth to the bridge," answered, "yes." Then, he could have seen this automobile approaching, and so could appellee have seen it before she started across the street. As she was walking at a moderate rate of speed, neither hurrying nor dragging, and had traveled about 20 feet, or much less than the full width of the 30-foot street, and, as the line of traffic north of the space occupied by the line of parked cars was north of the *Page 149 curb, before she came into collision with the automobile, and as it was traveling at a moderate rate of speed of 15 miles per hour, the automobile could not have been more than 160 feet away when she started across, was in plain view, and she could have seen it had she looked. I am assuming that her moderate rate of speed, neither hurrying nor dragging, was two miles per hour, and that, therefore, the car was traveling eight times as fast as she was traveling. The faster she traveled, the closer, of course, the car must have been when she started from the north curb. Her grandson on the north curb saw the car approaching; her granddaughter on the south curb saw it approaching, but she did not until just as it struck her, about two feet away. Why didn't she see it? There is but one answer — she did not look.
The duty to use care rests as well on the pedestrian as on the driver, and I am wholly unable to see, under the undisputed evidence, how appellant can be charged with any act of negligence; while, on the other hand, it clearly appears that appellee took no precaution whatever to protect herself from the approaching automobile. It was her duty, when about to cross the public street, to look and to take precaution to avoid collision with vehicles. Evans v. Adams Express Co. (1890),122 Ind. 362, 23 N.E. 1039, 7 L.R.A. 678; Indianapolis Traction, etc.,Co. v. Croly (1911), 54 Ind. App. 566, 96 N.E. 973, 98 N.E. 1091; Lake Shore, etc., R. Co. v. Brown (1908),41 Ind. App. 435, 84 N.E. 25; Stringer v. Frost (1889), 116 Ind. 477, 19 N.E. 331, 2 L.R.A. 614, 9 Am. St. 875; Simons v. Gaynor (1883), 89 Ind. 165.
In the Evans case, the court, at page 366, stated that: "It is, however, the duty of persons crossing, or about to cross, a public street on foot, to look and take proper precautions so as to avoid collision with approaching horsemen or vehicles." There is certainly much more *Page 150 need of exercising such care in these perilous times of automobile traffic than there was at the time of the decision in the Evans case, to avoid collision with horsedrawn vehicles.
In the Croly case, the court, at page 575, said: "Placing the case in the most favorable light for the plaintiff, she walked across the street looking straight ahead of her and walked upon the track at a point three or four feet in front of the car that struck her. True, she says that she looked up and down the street and that she saw no car; but the physical facts remain, that the car was there within a few feet of her at the time she stepped upon the track, that is was daylight and that her view was unobstructed. . . . Where it appears that nothing obstructed her view or distracted her attention, we see no excuse for her failure to use such care as she was capable of exercising to observe the approach of the car before stepping upon the track." In the instant case, it was not daylight, but the evidence shows that the street was lighted. The evidence also shows that nothing obstructed appellee's view, and it does not appear that her attention was distracted.
In the Brown case, the court, at page 439, stated: "The law presumes that one having the ordinary sense of sight must have seen that which was within the range of his vision."
If appellee entered a place of danger, as here, and nothing prevented her from discovering her danger, and she failed to do so, she is not entitled to recover, even though appellant did not use proper care to avoid the injury. Evansville, etc., TractionCo. v. Johnson (1912), 54 Ind. App. 601, 97 N.E. 176;Indianapolis Traction, etc., Co. v. Croly, supra; PennsylvaniaCo. v. Stegemeier (1889), 118 Ind. 305, 309, 20 N.E. 843, 10 Am. St. 136.
It is my opinion that the evidence is insufficient to *Page 151 sustain the verdict, and that the judgment should be reversed.