50 Ind. App. 5 | Ind. Ct. App. | 1912
— Appellant sued appellee for personal injuries alleged to have been caused by appellee’s conductor
The only errors argued are that the court erred in refusing to give to the jury instruction one, requested by appellant, and in giving instructions seven and nine on its own motion.
This instruction would be justified on the authority of Anderson v. Citizens St. R. Co. (1895), 12 Ind. App. 194; Crump v. Davis (1904), 33 Ind. App. 88, and Union Traction Co. v. Siceloff (1905), 34 Ind. App. 511. But in the case of Louisville, etc., Traction Co. v. Korbe (1911), 175 Ind. 450, the Supreme Court of this State disapproved such an instruction, on the ground that employes of street railway companies must use the highest degree of care to see and to know that no passenger is alighting from a car before putting it in motion, but are not required absolutely to see and to know. The Appellate Court cases before cited have been superseded by this decision. No error was committed by the trial court in refusing to give instruction one.
We have read the evidence, and while we cannot say that there is no evidence which would tend to support a verdict for appellee had the jury been properly instructed, yet, taking into' consideration all the instructions given to the jury, and all the evidence in the case, we feel that substantial justice was not done, and that the interests of justice will be best subserved by granting a new trial.
Judgment reversed, and cause remanded for new trial.
Note. — Reported in 97 N. E. 1028. See, also, under (1, 2) 6 Cyc. 615; as to the duty and liability of street car companies to passengers, see 118 Am. St. 461; for the measure of diligence required towards passenger on street railways generally, see 4 L. R. A. (N. S.) 122; on the question of the duty of a street-car conductor to see that passenger is off before starting the car, see 11 L. R. A. (N. S.) 140; as to the liability of a street car company for injury to alighting passenger by starting of ear on signal of fellow passenger, see 27 L. R. A. (N. S.) 764; on the question of time allowed passenger to alight, see 4 L. R. A. (N. S.) 140; (3) 38 Cyc. 1718; (4) 38 Cyc. 1674.