30 Ind. App. 602 | Ind. Ct. App. | 1902
Action for damages for personal injuries. The complaint, which is in two paragraphs, alleges that while appellee was riding as a passenger in a carriage of appellant transfer company, she was injured by a collision between the carriage' and a car of the street railway company. Both companies are charged with negligence. The paragraphs do not materially differ. More particularly stated, the averments are, in substance, that in February, 1900, appellee engaged the appellant the Frank Bird Transfer Company, which was a common carrier of passengers for hire, to carry her from her residence in the city of Indianapolis, to the Union Station in said city. Just east of the west baggage room of the Union Station, Louisiana street intersects or joins South Illinois street, and the street railroad tracks of the appellant the Indianapolis Street Railway Company are laid upon said Louisiana street, and continue north on South Illinois street, forming a curve at the intersection of said streets, so that the rear end of a street car while rounding said curve will swing out for a considerable distance beyond the street railway tracks. The appellant the Frank Bird Transfer
Appellant Frank Bird Transfer Company relies for reversal upon the action of the court in overruling its motion for judgment notwithstanding the verdict, and overruling its motion for a new trial. Said appellant contends that its motion for judgment should have been sustained, because it is shown by answers to interrogatories that appellee directed the driver of the coupé to drive to the place he did, and that she knew that it was a place of danger.
The court’s attention is called to the following interrogatories and answers, to wit: “(8) Lid she, after getting into1 said vehicle, direct said driver to drive her to the haggage room on the sopth side of Louisiana street, west of said Union Station? A. Yes. (9) Lid the said driver drive the said vehicle, with the plaintiff as a passenger in it, to the said baggage room? A. Yes. (10) Lid the said driver stop the said vehicle, with the plaintiff as a
Appellant claims that the answers to interrogatories fifty and fifty-one can not be reconciled with the general verdict, and are inconsistent with the theory of the complaint; that they show that the door of the vehicle when it stopped was directly north of the first gate in the fence extending east from the baggage room, and the vehicle was about ten feet east of the east end of the baggage room; that the cab was not struck at the curve, but was considerably west of it when struck. The theory of the complaint is that the cab was struck by the car at the curve of the tracks, or at the junction of Louisiana and Illinois streets, and that the rear end of the street car projected beyond the track as the car swung around said curve. It is found in answer to inter
In discussing the motion for a new trial saicf appellant claims, first, that the third instruction given hy the court of its own motion is erroneous. The instruction is as follows : “It was the duty of the plaintiff before crossing the track of the street railway company, and after she had crossed the same, to use ordinary care to avoid collision with any car that might approach upon said track, and if she failed to do so, and such, approximately, contributed to her injury, she can not recover as against the street railway company in this action. And the plaintiff was not relieved from such a duty by the fact, if you find it to' be a fact, that she was in a cab or carriage of the Frank Bird Transfer Company, while, as' between the plaintiff and the Frank Bird Transfer Company, she had a right to rely upon the agent of that company to exercise proper care for her safety. As between the plaintiff and the said street railway company, she was required to use ordinary care and attention to prevent injury, and to make all reasonable use of her senses of sight and hearing for that purpose; and if by the exercise of such care she could have avoided the injury complained of, she would not be entitled to recover a verdict against the said defendant street, railway company.”
The objection made to the instruction is that it makes an invidious distinction between appellee’s duties toward the transfer company and the street railway company; that appellee was just as much bound to use her senses of sight and hearing in the one- case as in the other. The position
„ In the ninth instruction the jury were told that the duty the two defendants owed to appellee was not the same. “As a passenger of the transfer company she had a right to expect of it the highest degree of care and prudence consistent with the conduct of its business, and as to it she was only required to sit passively in the cab to he in the exercise of ordinary care.” It is insisted that this does not correctly state the rule, and that appellee was hound to use all her senses to prevent injury to herself. We do not construe this, as claimed by appellant, as telling the jury that the transfer company was the insurer of the safety of the passenger, but, rather, as stating that it was not the duty of appellee to look and listen for unknown danger.
In the seventh instruction the jury were, in effect, told that appellee could not recover, if, by lack of reasonable care she had proximately contributed to her injury. In the thirteenth instruction the jury were told that “if the cab driver used all the care that human foresight and judgment could direct and provide in placing said cab where he did, when his passenger got out of the said cab, and used the highest degree of care while there for the safety of the plaintiff, then the defendant the Frank Bird Transfer Company is not liable in this action. Considering these instructions in connection with those complained of, it-does not seem probable that the jury was misled.
The eighth reason for a new trial was that the answer to interrogatory fifty, viz. — that when the vehicle stopped, the door was directly north of the first gate in the fence extending east from the baggage room — was not sustained by
It is also claimed that the answer to interrogatory fifty-one is not sustained by the evidence. It finds that the driver of the vehicle stopped the vehicle on the south side of the track about ten feet east of the east end of the baggage room. There is evidence to support this finding. While there is some difference in the evidence as to the exact distance from the baggage room to the cab when it was struck by the car, the1 evidence is uncontradicted to the effect that it was struck by the rear end of the car at the junction of the two streets, before the car had completed the turn, and that the collision Avas due to the fact that it Avas, by appellant transfer company, placed negligently and carelessly near the trade.
It is contended by the appellant railway company that the complaint is bad because it does not contain an averment that appellee Avas free from contributory negligence. The cause of action accrued and suit Avas commenced subsequent to the taking effect of the act of 1899 (Acts 1899,
It is averred, however, that the act in question is unconstitutional upon various grounds enumerated in appellants’ brief. The Supreme Court have held otherwise. Southern Ind. R. Co. v. Peyton, 157 Ind. 690, and cases cited. Besides, in transferring this case to this court, which is without jurisdiction to determine constitutional questions, it will be presumed that the Supreme Court disposed of the question adversely to appellants’ claim. Gowdy Gas Well, etc., Co. v. Patterson, 29 Ind. App. 261.
It is further urged against the complaint that its averments show that appellee went upon, or remained upon, or in dangerous proximity to, the street car track without exercising any care whatever; that she entrusted herself in a closed carriage to a carrier, directing him where to drive, and paying-no attention to the movements of the vehicle; that she was injured by the joint negligence of this carrier and a third person; that the appellee’s carrier is, as to such third person, her agent and she is responsible for its negligence. It will be noticed that it is averred that appellee, in taking passage with the transfer company, instructed said company to drive her to the building owned and operated by the Union Railway Company, etc.; that after having reached said station said transfer company
The negligence of the driver is not imputed to appellee, who merely directed the destination. Little v. Hackett, 116 U. S. 366, 6 Sup. Ct. 391, 29 L. Ed. 652, — in which the doctrine of imputed negligence is discussed, and many cases cited. Transfer Co. v. Kelly, supra; Wabash, etc., R. Co. v. Shacklet, 105 Ill. 364, 44 Am. Rep. 791; Cuddy v. Horn, 46 Mich. 596, 10 N. W. 32, 41 Am. Rep. 178; Thompson, Negligence (2d ed.), §§500, 502, cases cited and note, §3080, and note; City of Michigan City v. Boeckling, 122 Ind. 39; Town of Knightstown v. Musgrove, 116 Ind. 121, 9 Am. St. 827; Brannen v. Kokomo, etc., Co., 115 Ind. 115, 7 Am. St. 411; Chicago, etc., R. Co. v. Spilker, 134 Ind. 380.
In §502 of Thompson, supra, the author says: “While there are a few untenable decisions to the contrary, nearly all American courts are agreed that the rule under consideration extends so far as to hold that where a person, while riding on a private vehicle by the invitation of the driver, or the owner, or the custodian of the vehicle, and having no authority or control over the driver, and being under no duty to control his conduct, and having no reason to suspect any want of care, skill, or sobriety on his part, is injured by the
In §503, of Thompson, sufra, the author says: “But, as already stated, the rule of the preceding cases does not, under all circumstances, absolve the passenger in the private carriage from taking such precautions for his own safety as, under the circumstances, are reasonable. If he is riding by the side of the driver in an open carriage, and the driver, on approaching a railway track, fails to malee any use of his faculties, to ascertain whether or not a train is approaching, —then it is a reasonable suggestion that the passenger ought to call his attention to the situation and remonstrate with him, or, if necessary to his own safety, leave the vehicle. It has been ruled that a person so riding is bound to exercise ordinary care for his own safety; and consequently that an instruction to the jury Avhich directed their minds to the sole inquiry whether the driver of the wagon was exercising ordinary care, was erroneous as calculated to mislead them. In another court it is reasoned that the rule that the negligence of a driver of a Avagon is not imputable to one riding with him Avhen the accident occurs at a railroad crossing is applicable only to cases where the relation of master and servant, or principal and agent, does not exist, or where the passenger is seated aAvay from the driver, or is separated from him by an enclosure, and is without opportunity to discover the danger and to inform the driver of it. * * * The sound conclusion seems to be that AAdiere a person who is sui juris — capable of caring for himself or herself — voluntarily rides in the private carriage of another, at his invitation or AAÚth his license or sanction, and is injured through the negligent driving of the latter, his negligence will or avíII not be imputed to the guest or licensee according to the circumstances, and it will therefore be, to a large extent, a question of fact.”
Instruction number one, requested' by the appellant street railway company and refused by the court, directed the jury to return a verdict in favor of said appellant. This action of the court was not error. The evidence presented a state of facts to be passed upon by the jury upon proper instruction. Instruction “A,” requested by appellant and refused, was to the effect that if the driver of the cab was guilty of negligence, that he was the agent of appellee and that she was responsible for such negligence. It was properly refused. Exceptions are based upon the action .of the court in refusing to' give numerous instructions requested, and in giving instructions to the jury to which exceptions were taken. An examination of the instructions given by the court shows that of the instructions requested and refused, those applicable to the evidence and correctly stating the law, were, in substance, included in the instructions given by the court. The instructions given .by the court were full and fair upon the evidence and the issues.
The jury answered interrogatories thirty-three, thirty-four, thirty-five, and thirty-six, requested by the railway company, “Ro evidence.” The court overruled appellants’ motion to require more specific answers. The answers are assigned as reasons for a new trial. If there was evidence, as charged, to show that the answers were untrue, that they were not supplied by the evidence, this was no reason for returning them, but the question is properly presented in a motion for a new trial. Board, etc., v. Nichols, 139 Ind. 611. Said interrogatory thirty-three required the jury to find whether the appellee, at the time the vehicle in which she was riding crossed Louisiana street, looked; the thirty-
The injury to plaintiff did not occur while she was crossing the track. In answer to the thirty-seventh interrogatory .the jury found that had appellee looked westward along Louisiana street, while sitting in the vehicle, after it had crossed the south' track she could not have seen the car which struck the vehicle approach. The coupé was not on the track when struck, and if, by listening, she could have heard the noise of an approaching car, her failure to listen would not, under the circumstances, have been necessarily negligence, as a matter of law, but a circumstance to be considered by the jury in determining whether or not appellee contributed to her own injury, the burden of which was upon appellants. The passing of cars along the track was to be expected, and the vehicle not being on the track was presumably, from the standpoint of the passenger, not in danger. Any answers which might have been given to these questions would not, necessarily, have controlled the general verdict, and if they were not truly answered it was not, for the reason given, reversible error.
There can be no controversy upon the proposition that appellee was injured by the negligent acts of the appellants. She is entitled to recover unless the evidence shows that her own negligence contributed to such injury. The burden of showing such contributory negligence was upon appellants. Whether appellee’s failure to see and avoid the dangerous position in which she had been placed for the second or two of time after the cab was stopped until struck by the car was negligence on her part, was a question to be submitted to the jury. Upon the general verdict this issue
There is evidence fairly tending to sustain the verdict. We have passed upon the controlling questions discussed, and find no error for which the judgment should be reversed. Judgment affirmed.