59 Ind. App. 217 | Ind. Ct. App. | 1915
Appellant, a mature woman, brought this action to recover for 'personal injuries inflicted on her by one of appellee’s cars at a flag station in "Wells County. The averments of the complaint material to a determination of the questions involved are in substance that on January 1, 1907, appellee was operating a traction line between Marion and Bluffton; that on said day early in the morning, and before daylight, appellant went to stop 11 on said line near which she lived, for the purpose df taking passage to Bluff-ton on one of appellee’s ears; that cars stopped at that place for the purpose of receiving passengers only on signal from such passengers to that end; that soon after she reached the stop, and while it was yet dark the car approached; that “said ear was not provided with a headlight as it should have been, and she signalled said car to stop that she might embark thereon, and that after signalling said car to stop, she stepped aside from the usual stopping place of the company’s ears where they made stops at said station, and where she was out of the way of said cars when they did stop at their usual stopping place at said station; believing, as she had a right to believe, that said ear would stop at said station and let her embark thereon; that the car which she had so signalled did not stop at said station * * * but * * ® ran by her at a very high rate of speed, and * * * caused her cloak which she was then wearing * * * to be drawn towards said car, and through no fault of plaintiff, but due entirely to the high rate of speed at which defendant’s servant was driving said car and the negligence of said servant to stop said car where he properly should, her cloak was caught'by some part of said car as the same went swiftly by her”, and she was thereby thrown to the ground and injured; “that had said car been
The situation then is as follows: Appellant, a mature woman, accustomed to travel by interurban, and familiar with the surroundings, stood in the middle of the track and attempted to flag a car which she heard approaching, using as a signal only her handkerchief. She first saw the car when distant 150 feet, negligently running in the darkness at a high rate of speed without any headlight, and thereupon immediately ceased her signals,' and stepped from the track to a position eighteen inches to two feet from the ends of the ties, which position she maintained until injured. She chose her own place, and there was nothing to prevent her from taking a safe position further from the track. She had no knowledge and there was nothing to indicate that her signals had been seen, or that the car would slacken its speed or stop. She was wearing a long cloak unbuttoned. The car approached, reached her and passed at such speed, but appellant did not change her position. If she had stood at a distance four feet or more from the track she would not have been hurt. As the car passed, her coat was blown against it and caught on some part of it near the rear end, and she was thereby thrown and injured.
There is a like holding in a case where a person was standing so close to the track that he was injured as a ear passed, by coming in contact with a passenger whom he knew to be riding on the steps of the car. Graves v. Tacoma R., etc., Co. (1913), 72 Wash. 387, 130 Pac. 476, 45 L. R. A. (N. S.) 269. Also where a person standing near the track leaned forward in the act of signalling an approaching car, so that it came in contact with some portion of his body as it passed. Neal v. Springfield St. R. Co. (1905), 189 Mass. 351, 75 N. E. 702; Norfolk, etc., Traction Co. v. White (1909), 109 Va. 172, 63 S. E. 418. Also where a woman, standing near the track waiting for an approaching car, observed the front end pass without injuring her, and therefore believed she was far enough from the track to be safe, but was struck by the rear handhold as the car turned the curve. Widmer v. West End St. R. Co. (1893), 158 Mass. 49, 32 N. E. 899.
The cases cited are illustrative rather than decisive of the question here. A point of similarity exists between those first cited and the case at bar in that each involves the principle of charging a person of maturity and under ordinary circumstances with knowledge of facts within the scope of common observation. Bruff v. Illinois Cent. R. Co. (1909), 121 S. W. (Ky.) 475; 24 L. R. A. (N. S.) 740, is' in some particulars, closely parallel with the case at bar. There plaintiff, after an unsuccessful attempt to flag an approaching train at night, stepped from the track as it neared him, whereupon the suction of the train in passing blew off his hat. In an involuntary attempt to catch his hat, his hand came in contact with the train, thereby breaking his arm. It was held that plaintiff was guilty of contributory negligence in unnecessarily taking a position so near .the track. In the case at bar, it does not appear to ns that reasonable minds would differ on the proposition that appellant failed to exercise ordinary care for her own
Judgment affirmed.
Note. — Reported in 109 N. E. 224. As to who are passengers and when they become such, see 61 Am. St. 75. See, also, under (1, 2) 8 C. J. 1385; 2 Cyc. 997; (3) 3 C. J. 1357; 2 Cyc. 987; (4) 6 Cyc. 620, 642; (5) 38 Cyc. 1927; (6) 29 Cyc. 513.