XIV. Gout. No later decisions herein. For earlier cases, see annotation in 19 A.L.R. 107. XV. Typhoid fever. No later decisions herein. For earlier cases, see annotation in 19 A.L.R. 107. XVI. Diabetes, Bright's disease. (Supplementing annotation in 19 A.L.R. 107.) Geizel v. Regina Co. (1921) 96 N. J. L. 31, 114 Atl. 328, set forth 120 Atl. 662, it was held that the death of an employee from dilation of the heart, caused by an anesthetic administered to him for the purpose in the annotation in 19 A.L.R. 107, of performing a surgical operation on has been affirmed per curiam, on the grounds stated in the opinion below. (1922) — N. J. —, 116 Atl. 924. XVII. [New] Appendicitis. Where the pressure of heavy shingle blocks which a shingle sawyer, as a part of his routine work, was carrying, caused a rupture of a diseased appendix, it was held in Shadbolt v. Department of Labor & Industries (1922) 121 Wash. 409, 209 Pac. 683, that the injury thus caused was an injury "resulting from some fortuitous event, as distinguished distinguished from disease" as defined in the Compensation Act, notwithstanding that it was shown that the appendix, in the course of time, would have ruptured without external pressure. And it has been held that an employee, who, in emptying molten iron. from a ladle, received a severe wrench, following which he had an attack of appendicitis which, medical testimony tended to show, resulted from an aggravation, by the injury, of a chronic ailment predisposing him to that form of attack, is entitled to recover compensation for the entire period of his disability. Fritz V. Rudy Furnace Co. (1922) 218 Mich. 324, 188 N. W. 528. XVIII. Heart disease. (Supplementing annotation in 19 A.L.R. 110.) It has been held that death from heart trouble, following an injury received by an employee when he was thrown from a horse while in the pursuance of his duties, is the result of 28 A.L.R.-14. a finger injured in the course of his employment, resulted from an injury arising out of and in the course of the employment, for which compensation could be awarded. The temporary disability of a miner who was suffering with asthma and sympathetic heart trouble, following exposure to the black damp of the mine, which overcame him, and which, the medical testimony showed, aggravated the bronchial and heart trouble, causing him to be temporarily disabled from work, is the result of an injury which entitles him to compensation; but no compensation can be had for a permanent disability from the diseased condition of the claimant, which later ensues, where the medical testimony shows that the permanent disability is due entirely to the pre-existing disease, in no way affected by his being overcome by the air in the mine. Springfield Dist. Coal & Min. Co. v. Indiana Industrial Commission (1922) 303 Ill. 528, 135 N. E. 792. But in Rusch v. Louisville Water Co. (1922) 193 Ky. 698, 237 S. W. 389, it was held that, under the Compensation Act which, in defining injuries for which compensation could be had, provided "that personal injury by accident as herein defined shall not include disease except where disease is the natural and direct result of a traumatic injury by accident, nor shall they include the results of a pre-existing disease," the death of a workman which, the compensation board found, was due to pre-existing disease of the heart and the excitement and hurry of the employee at a critical moment when a steam valve blew out, which caused heart failure, did not arise from an accident or injury within the meaning of the Compensation Act so as to entitle his dependents to compensation for the death. The court said: "The legal effect of the facts found by the board brings the case directly within the clause referred to. The language of the statute is too clear to admit of doubt as to its meaning. Whatever the legislature may have intended to do, it clearly expressed the purpose of relieving the employer from liability in cases of this kind. Unfortunate as was the death Rusch, his dependents are bound by the statute, which denies to them compensation. We, therefore, concur in the view adopted by the compensation board as to the legal effect of the established facts." XIX. [New] Miscellaneous. of Death from meningitis and hypostatic pneumonia, following an accident in which the employee was injured while loading roofing, when a roll of roofing fell on him, bruising him considerably, may be said to have been caused by the accident, where it is shown that the injury received accelerated the existing hypostatic pneumonia, and therefore compensation may be recovered under the Compensation Act. Great Lakes Supply Co. v. Industrial Commission (1923) 309 Ill. 68, 140 N. E. 2. a An employee suffering from chronic bladder trouble which has to some extent impaired his earning capacity, who receives an injury while in the course of his employment, which so aggravates the existing bladder trouble as totally to incapacitate him, is entitled to recover compensation for his total permanent disability, based on his previously impaired earning capacity. Centralia Coal Co. v. Industrial Commission (1922), 301 III. 418, 134 N. E. 174. The death of an employee who had previously been in bad health, following a mental shock received when, in the course of his employment, he accidentally killed a fellow employee, which shock his weakened physical condition was unable to overcome, has been held to be caused by an accident arising out of the employment, for which compensation may be recovered. Klein v. Len H. Darling Co. (1922) 217 Mich. 485, 187 N. W. 400. And it has been held that the death of an employee was caused by an accident arising within the scope of her employment, where the employee, complaining of feeling ill, was advised to and did lie down on a couch in a rest room maintained by the employer for its customers and employees, and later, in some manner, fell through a glass-paneled door of the rest room, severing an artery, thereby causing death, notwithstanding that the illness complained of arose from natural causes, in no way connected with the employment, the industrial accident commission having found that the dominant and proximate cause of the death was the fall through the glass door of the rest room, a risk to which the decedent's employment exposed-her. Sullivan's Case (1922) 241 Mass. 9, 134 N. E. 406. Where an aged night watchman whose legs had previously "bothered" him, while making his rounds as a watchman, felt a sudden cramp in his knee which caused him to fall, thereby twisting his knee, it was held that the injury could be properly and reasonably found to be caused by the performance of his duty as a night watchman, and therefore was one for which he was entitled to compensation under the Workmen's Compensation Law. Webber's Case (1922) 121 Me. 410, 117 Atl. 513. A woman employee who suffered an injury in the course of her employment which aggravated a preexisting, dormant, diseased condition of the sexual organs, necessitating an operation, is entitled to recover compensation for the entire period of the disability. Hogan v. Twin City Amusement & Trust Co. (1923) 193 N. W. 122. Minn. G. S. G. 1. The ordinary care required of one about to drive across a street car track at a street intersection does not require him to apprehend the great speed of a car exceeding the limit required by ordinance, nor that the motorman has lost control of it, and will fail to signal its approach. [See note on this question beginning on page 217.] - injury to person at street intersection implying negligence. 2. Where a person is injured at a highway intersection by a street car which is, without warning, running at excessive speed, he cannot be charged with negligence on the theory that he is charged with having seen what he might have seen had he looked, and with having heard what he might have heard had he listened. -duty of one crossing track. 3. The rule requiring one about to cross the tracks of a steam railroad to stop, look, and listen does not govern the right of pedestrians and those riding in or driving vehicles when approaching or crossing the tracks of an electric railroad at a public street intersection. [See 25 R. C. L. 1275.] - duty to stop before crossing tracks. 4. One need not stop to look and listen before driving an automobile across street car tracks at the intersection of city streets. [See 25 R. C. L. 1276, 1278.] APPEAL by defendant from a judgment of the Circuit Court for Madison County (Pence, J.) in favor of plaintiff in an action brought to recover damages for personal injuries and for injuries to plaintiff's automobile, alleged to have been caused by defendant's negligence. Affirmed. The facts are stated in the opinion Messrs. J. A. VanOsdol, Diven & Diven, and Matson, Kane, & Ross, for appellant: The failure to look is the failure to exercise the kind of care required by law, and it makes no difference whether it is applied to a country crossing or to a street crossing. Young v. Citizens' Street R. Co. 148 Ind. 54, 44 N. E. 927, 47 N. E. 142, 2 of the court. Am. Neg. Rep. 703; Central Indiana R. Co. v. Wishard, 186 Ind. 262, 114 N. E. 970; Pittsburgh, C. C. & St. L. R. Co. v. Dove, 184 Ind. 447, 111 N. E. 609. Ordinary care requires a person about to cross a street or railroad track in a city to look and listen and, if necessary in order to make looking and listening effective, to stop; and, further, to use ordinary care in select ing a place where the act of looking and listening will be reasonably effective. Pittsburgh, C. C. & St. L. R. Co. v. Dove, supra. Instructions must be applicable to the case and issue, and even though they state abstract propositions of law correctly, still, if they are not applicable they are erroneous. Cleveland, C. C. & St. L. R. Co. v. Gossett, 172 Ind. 525, 87 N. E. 723; Terre Haute Electric Co. v. Roberts, 174 Ind. 351, 91 N. E. 941; Cleveland, C. C. & St. L. R. Co. v. Case, 174 Ind. 369, 91 N. E. 238; Domestic Block Coal Co. v. DeArmey, 179 Ind. 595, 100 N. E. 675, 102 N. E. 99; New York, C. & St. L. R. Co. v. Lind, 180 Ind. 38, 102 N. E. 449; Doyle v. Hawkins, 34 Ind. App. 514, 73 N. E. 200; Timmons v. Kenrick, 53 Ind. App. 490, 102 N. E. 52; Baltimore & O. R. Co. v. Peck, 53 Ind. App. 281, 101 N. E. 674. Messrs. Ellison & Neff for appellee. Travis, J., delivered the opinion of the court: Appellee sued for damages for personal injuries and injuries to property inflicted by the appellant. A statement of facts deemed sufficient for an understanding of the application of the legal doctrines invoked is as follows: Appellant operated a single-track interurban railway along and upon one of the principal public streets of a city. Appellee was driving south along a street that crossed the street upon which the railway was located at right angles. The street occupied by the railway had been paved on either side of the track in the fall, just prior to the approach of winter, and the space between the rails of the track and on 1 foot on the outside of either rail was left unpaved, and the railway track and its bed were in the original position, which was about 12 inches above the surface of the new pavement. The injury was inflicted in December. To afford a means for vehicles to cross the railway track upon this street intersection, appellant had made an approach of dirt, sand, and gravel on either side. of the track from the pavement to the rail. The streets forming the intersection lay with the main points of the compass east and west and north and south. The improved part of the street in which appelÎant's track was located was 30 feet in width between curb lines, with a parkway between the curb and the sidewalk on either side of the street. Upon the lot forming the northeast corner intersection of the streets was located a church 40 feet wide north and south, by 60 feet in length and east and west. To the north and to the east of the church the view easterly by south was unobstructed by buildings or fences. Appellee plaintiff was a man seventy years of age, with good sight and hearing, and drove his own. automobile, which had three speeds forward and was of the runabout type of body. At the time of the accident he was on his way home from a trip to the city with some produce, which he delivered to a grocery situated two blocks north of this street intersection. When he started home from the grocery the body of his automobile was inclosed with side curtains, and he drove the first block south from the grocery with the speed lever set in first gear. He changed the speed lever to second gear in the second block (which is the first block north of the railway), and was then going between 5 and 6 miles per hour; and while going the second block before reaching the church he continued to watch for a street car past the southwest corner of the church until after he had passed the church, and when he could see down the cross street east, and, not seeing any car, he then looked to the west to see if a car was approaching from that direction, and, seeing none approaching, and being then about upon a line with the north curb of the street, he put his foot upon the accelerator to give his automobile more power and speed to mount the incline to pass over the street car track, which gave him a speed of about 8 or 9 miles an hour, but just as he had so accelerated the power and speed of his automobile he (Ind. -, 136 N. E. 18.) again looked to the east, when he saw a street car very close to him, and he then threw out the clutch and applied the brakes, but before he could stop the front wheels of his automobile were upon the track, when the collision occurred. The automobile was thrown and pushed by the collision to the northwest over the curb and across the sidewalk, where it stopped. Appellee was not thrown out of his car, but was taken out by people who first reached him. He crossed this intersection frequently, and knew the conditions of street and track and surrounding conditions. The street car, as it bore down upon appellee from the east, was traveling at a rate between 25 and 30 miles per hour, in spite of an ordinance of the city limiting the speed of electric cars to 12 miles per hour, and without the sounding of gong or other alarm; and, as testified to by the motorman as witness for appellant, he did not have the car under control, although the brakes of the street car were not defective. The affirmative side of the case was based upon two paragraphs of complaint, the first for personal injuries, and the second for injuries to his automobile, both of which paragraphs were based upon the alleged negligence of appellant in negligently permitting to remain on each side of the track an embankment of 6 inches, in operating the car at a speed of 25 miles per hour in violation of the ordinance of the city limiting the speed of electric cars to 12 miles per hour, and in failing to sound the gong on the car, or give any other alarm, and without any negligence contributing thereto. The issue formed by the general denial of the appellant was, under the instruction of the court, decided by a jury in favor of the appellee. The appellant filed its motion for a new trial for the reasons that the verdict is not sustained by sufficient evidence and is contrary to law, and in giving to the jury two instruc tions complained of, numbered 10 and 13, and in refusing to give three instructions tendered which were numbered 37, 38, and 39, and which motion was overruled and error assigned upon such ruling. injury to person at street Street railways intersection Instruction 37, refused by the trial court, is based upon an assumed legal presumption that a person is charged with having seen what he might have seen had he looked, and with having heard what he might have heard had he listened; and, in the event such person is injured, negligence is imputed to him. This cannot be the law of this implying negligence. case. If appellee had seen the approaching car when at such a distance from the crossing that it might easily have been stopped had it been moving at a lawful rate, he might have been able to have crossed the track in safety, or the car could have been stopped. At any rate, the street railway company had no superior right to cross this crossing in preference to individuals in vehicles, except that the street car cannot turn from the track to accommodate those about to cross its track. Had the vital part of this instruction been properly qualified, it might have been given to the jury, except that the essence of this instruction was covered by instruction 32, given at the request of appellant, and instruction 9 upon the court's own motion. Instruction 38 is a garbled quotation from the case of McGee v. Consolidated Street R. Co. (1894) 102 Mich. 107, at page 115, 26 L.R.A. 300, 47 Am. St. Rep. 507, 60 N. W. 295. The instruction is as follows: "In this state the law is laid down as well settled that the persons passing on or crossing railroad crossings must exercise care. They must look and listen, and under certain circumstances must stop, before attempting to cross. Electric street car crossings are also places of danger. The cars are run at a great speed in a street, and the rule must be, before coming upon such tracks, |
