146 Ind. 147 | Ind. | 1896
This action was commenced and prosecuted in the lower court by appellee, William T. Moneyhun, as guardian of Charles Moneyhun, a minor, under the age of twenty-one years. The action arises out of injuries sustained by said ward, while a passenger upon a train of cars operated by the appellant, by reason of the alleged negligence of the latter.
Upon the trial there was a special verdict returned by the jury, and upon the facts therein found the court adjudged that appellee was, as such guardian, entitled to recover damages for the said injuries for
Appellee is the father and the duly appointed guardian of Charles Moneyhun; the latter having no estate, either real or personal. This ward, at the time he sustained the injuries in question, was a boy of average size, intelligence and education, for one of his age, being at the time nearly fifteen years of age. On June 9th, 1895, after advertising the same, the railroad company, appellant herein, ran an excursion train over its road from Anderson, Indiana, to Benton Harbor, Michigan, and return, the train being composed of two sections, and the cars thereof being vestibuled. Appellee’s ward, Charles Moneyhun, with the knowledge and consent of his father, purchased a ticket and boarded said train as a passenger at Anderson, for the purpose of being carried as such to Benton Harbor. He entered one of the coaches of the second division and seated himself therein. When said train arrived at Alexandria, a station about twelve miles from Anderson, the coach in which said Moneyhun was seated was detached from the train and left upon a side track because of a hot box, which was occasioned by reason of the box being worn and not properly packed. The passengers in this coach, including young Moneyhun, were informed by the conductor in charge of the train that they must leave this car and go into others. On entering the car to -which he and other passengers had been transferred, he found all of the seats occupied, and the aisle thereof and other places therein filled
By being thrown from the train in the manner stated, Moneyhun was severely injured, being the same injury complained of by appellee. The jury also find that there was ample room in the car where he wvas, for him to ride, without going upon the platform or steps, and had he remained upon the inside of the coach in which he was riding he would not have been injured. That it was not safe, but dangerous, for him to leave the car and “go onto and stand upon the ear step” as he did,while the train was running at the rate
The cars were so vestibuled as to render it safe for a passenger to pass from one car to another, and on the car door there was a printed notice, forbidding passengers to ride upon the platform of the car, but owing to the door being at the time swung back, it was thereby obscured from view. The injuries sustained by appellee’s ward consisted of several fractures of both the right and left leg and dislocation of his left ankle. These injuries are found to be permanent.
The inquiries arising under the above facts embraced in the special verdict are those which usually arise under the issues in actions based upon negligence. First. Is the injury in question the result of the negligence of appellant? Second. Is the ward of appellee chargeable with contributory negligence? At the very threshold of these questions counsel for appellant challenge the right of the guardian to maintain this action, upon the ground that it could be brought only in the name of the infant by his nest friend under sections 256 and 257, Burns’ R. S. 1894. Section 27 of the Code of 1881, section 267, R. S. 1894 (266, R. S. 1881), provides that: “A father (or in case of his death, or desertion of his family, or imprisonment, the mother) may maintain an action for the injury or death of a child, and a guardian for the injury or death of his ward. But when the action is brought by the guardian for an injury to his ward, the damages shall inure to the benefit of his ward.”
In the case of Louisville, etc., R. W. Co. v. Goodykoontz, Gdn., 119 Ind. 111, this court, on page 113, interpreted this section as follows: “If a minor under guardian
We yield adherence to the above interpretation of the statute, and are of the opinion that it clearly authorizes a guardian of an infant, who has received a personal injury as the result of a wrongful act of omission or commission by another, to sue and recover from the wrongdoer such damages as are personally sustained by his ward. The contention of appellant upon this proposition must therefore be denied, and the action of the appellee in instituting this suit as the guardian of the injured minor is sustained.
The special verdict does not find that the ward of appellee was without fault, or free from contributory negligence upon his part at the time the injury occurred. As the freedom from fault or negligence at the time of the accident upon the part of the latter is an essential factor which must exist in order to entitle the appellee to recover in this action, we may, therefore, assume, without deciding, that appellant, under the circumstances, is chargeable with actionable negligence, and address our inquiry first to the question of contributory negligence, which counsel for appellant so strenuously insist, under the facts, must be imputed to appellee’s ward. 'It is conceded by appellee, that under the facts his ward must be deemed to have been, at the time he sustained the injury, capable
It is also a well settled proposition in this State, that whenever, under the facts disclosed by a special verdict, the question is presented, either as to the negligence of the defendant, or as to whether the plaintiff was without fault, and two inferences may reasonably be drawn as to either of said ultimate facts, one in favor and the other against, then the determination of such fact is within the province of the jurors, and their finding will be accepted by the court as controlling. Ohio, etc., R. W. Co. v. Collarn, 73 Ind. 261; Cincinnati, etc., R. W. Co. v. Grames, 136 Ind. 39; Rush v. Coal Bluff Mining Co., 131 Ind. 135; Woolery, Admr., v. Louisville, etc., R. W. Co., 107 Ind. 381;
But if the facts found are such that the court can adjudge as a matter of law, that the injured party was, or was not, guilty of contributory negligence, then the finding of such ultimate fact, whatever it may be will be disregarded by the court. Smith v. Wabash R. R. Co., supra.
In the case at bar, however, there is but one reasonable inference to be deduced from the facts relative to the acts of appellee’s ward at the time he sustained his injuries, and that is to the effect that his own negligence contributed to said injuries, hence a finding by the jury that he was free from fault could not have affected the legal result. It is manifest, we think, from the facts shown, that the ward of appellee was thereunder chargeable with contributory negligence. While it is true that it was a duty incumbent upon the railroad company to furnish a seat within its car for. each passenger taken aboard of its train, and not merely standing room in the aisle of the car, the mere fact, however, that he was compelled to accept standing room would not justify him to voluntarily leave a place of safety and go to one of peril. The jury found that there was ample room in the car in which he was riding and in other cars upon the train, and that there was no necessity for him to go upon the platform or ear steps, and that had he remained inside of the car he would not have sustained the injuries which he did. That it was unsafe and dangerous for him to leave the car when the train was running at the rate of twenty-five miles per hour and stand upon the steps, as he was doing wrhen the accident happened. The jury further found that the place where Moneyhun stood when injured was not a safe place to stand, “even if
The conclusion reached is in harmony with and supported by the following authorities: Goodwin v. Boston, etc., R. R. Co., 84 Me. 203, s. c. 24 Atl. 816; Worthington v. Central Vt. R. R. Co., 64 Vt. 107, s. c. 23 Atl. 590, 15 L. R. A. 325; Camden, etc., R. R. Co. v. Hoosey, 99 Pa. St. 492; Fisher v. West Virginia, etc., R. R. Co., 39 W. Va. 366, s. c. 19 S. E. 578, 23 L. R. A. 758; Alabama, etc., R. R. Co. v. Hawk, 72 Ala. 112; Jackson v. Crilly, 16 Col. 103, s. c. 26 Pac. 331; Pattersons. Central, etc., R. R. Co., 85 Ga. 653, 11 S. E. 872; Bemiss v. New Orleans, etc., R. R. Co. (La.), 18 South. 711; Wendells. New York, etc., R. R. Co., 91 N. Y. 420; Hayes v. Norcross, 162 Mass. 546 s. c. 39 N. E. 282; Wallace v. New York, etc., R. R. Co., 165 Mass. 236, s. c. 42 N. E. 1125; Krenzer v. Pittsburgh, etc., R. W. Co. (Ind. Sup.), 43 N. E. 649; Lewis v. Baltimore, etc., R. R. Co., 38 Md. 588; Shirk v. Wabash
It follows that the court erred in denying the appellant’s motion for judgment in its favor on the special verdict. The judgment is, therefore, reversed and the cause remanded, with instructions to the lower court to sustain this motion and render judgment upon the special verdict in favor of appellant.