22 Ind. App. 78 | Ind. Ct. App. | 1899
— Appellant appeals from a judgment awarding damages to appellee for alleged personal injuries. A general verdict was returned and answers to special interrogatories. The only question discussed by appellant’s counsel arises on the action of the court in overruling appellant’s motion for judgment on the answers to interrogatories notwithstanding the general verdict.
The evidence has not been brought into the record. The general verdict finds all the material averments of the complaint to be true, and that the injury was received as therein charged. If the complaint shows that appellee was injured through appellant’s negligence, and that he himself was guiltless of any negligence proximately contributing thereto, he was entitled to recover unless the special answers of the jury'and the material averments of the complaint are in irreconcilable conflict.
The complaint shows that at the time of the injury appellee was a passenger on one of appellant’s cars, and desired to alight at Lynn street, of which fact he notified the conductor; “that at the time said plaintiff so notified said conductor of his desire to alight therefrom, said car could easily have been stopped in time to allow plaintiff to get off; that as said car approached said crossing the speed of the same was checked and slackened as if to stop; that at the time when plaintiff so notified said conductor of his wish to alight from said car, and at the time when said car was checked and its speed slackened, plaintiff was standing on the rear platform of said car on the left side of said conductor; that when the speed of said car was so checked and slackened by the motorman in charge thereof, as aforesaid, as said car approached said crossing, the said conductor, who was standing on the right side of said plaintiff, invited and notified the plaintiff to alight from said car by stepping to one side and with his hands passing plaintiff by him to allow him to step down and off said car; that plaintiff passed to the side of the platform and took hold of the hand hold on the side of the car, and was
Whether the speed of the car was changed as it approached Lynn street crossing, the answers of the jury are contradictory. The answers show that the appliances for controlling the electric current that operated the car were such that the motorman turned it on by turning a lever, so that certain notches in the apparatus were successively passed; that from the time the front end of the car was twenty feet east of Lynn street until the rear end was thirty feet’ west of Lynn street, its speed was from four to five miles per hour; that in running from a point where the front end of the car was twenty feet east of Lynn street until after appellee fell from the car, the electricity was turned on three notches, and while running that distance there was no change in the amount of the electricity used. But they further answered that while running the above distance there was no evidence that the motorman moved the lever by which the electricity was turned on and off in any way, whether if it was moved the electricity was turned on or off, or, if it was moved at all, how many notches. There is no direct finding by the jury in the special answers that the speed of the car was or was not increased in going the particular distance mentioned. These answers must all be considered together, and when so considered they cannot bo said to be in irreconcilable conflict
The complaint avers that, immediately before he fell, appellee passed to the side of the platform and took hold of the hand hold on the side of’ the car and was in the act of stepping down upon the step to be ready to step off as soon as the car stopped. It is true some of the answers show that he was not stepping from the car floor to the step when he fell; that he was being carried past his destination; that he was trying to get off a moving car when he fell because he did not want to be carried past his destination; but the jury further answered contradictory to the above, but in accordance with the implied finding of the general verdict, that appellee at the time he fell was getting ready to get off the car as soon as the same came to a stop. It is evident that upon this particular point the answers to interrogatories cannot be held to overthrow the general verdict.
The averments of the complaint that, as the car approached the crossing, the conductor who was standing near appellee on the car platform invited and notified appellee “to alight from said car, by stepping one side, and with his hands passing plaintiff by him to allow him to step down and off said car,” are not contradicted by any answers to interrogatories. And the rule is approved by many authorities’ that, “A passenger is justified, as a general rule, in obeying the direction of the employes of the carrier, and if he receive injury in obeying them, the carrier is liable, even if it appears that if he had not obeyed he would have escaped injury.” Louisville, etc., R. Co. v. Bisch, 120 Ind. 549, and cases cited; Cincinnati, etc., R. Co. v. Carper, 112 Ind. 26, and cases cited; Louisville, etc., R. Co. v. Kelly, 92 Ind. 371; Kentucky, etc., Co. v. Quinkert, 2 Ind. App. 244.
Applying the above principles to the case at bar, we cannot escape the conclusion that no error was committed in refusing to set aside the general verdict, and render judgment in appellant’s favor upon the answers to the interrogatories. Even if there is a slight variance as to the exact time and place of the accident, it is not such a variance as goes to the substance of the issue, and' a variance in some matter of detail will not reverse a judgment, Section 394 Burns 1894, section 391 Horner 1897. Cincinnati, etc., R. Co. v. Revalee, 17 Ind. App. 657; Louisville, etc., R. Co. v. Shanks, 132 Ind. 395; Cummings v. Girton, 19 Ind. App. 248.
This court has held in the case of Dresslar v. Citizens St. R. Co., 19 Ind. App. 383, that uniformity in the movement
Wiley, J., absent.
