180 Ind. 54 | Ind. | 1913
Action by appellee against appellant for personal injuries, alleged to have been sustained in a collision between two electric motor cars. The court overruled a demurrer to the complaint. This ruling is assigned as error. There was a trial by jury and verdict and judgment for appellee in the sum of $10,000. Appellant moved for judgment on the answers to 131 interrogatories submitted to the jury by the trial court. This motion was overruled, and such ruling is claimed to be erroneous.
The complaint is based on the theory of negligent failure to equip an electric passenger car with an approved air brake, in violation of the provisions of §6 of the act of March 8, 1907 (Acts 1907 p. 186, §5283 Burns 1908). This section reads as follows: “That it
It is alleged that appellee, while operating the car, discovered another interurban car approaching him at a suffi
The following facts are found by the answers to interrogatories : plaintiff was injured because of a collision between a passenger ear, of which he was in charge as motorman, and a freight ear; plaintiff’s car had the right of way, and collided with the freight that should, under the rules, have stopped at a siding; when plaintiff first saw the approaching freight, his car was from 650 to 700 feet from the place of accident, and from 970 to 1,020 feet from the approaching freight; the latter ear was then running about 35 miles per hour, and plaintiff’s about 25 miles per hour; the plaintiff attempted to apply the air brake on his car as soon as he saw the approaching freight, but his car traveled from 150 to 200 feet before the brake took hold, and he was traveling at a high rate of speed when the collision occurred; at the time of the accident the freight had almost stopped; plaintiff’s car, if equipped with a standard brake in good condition and of sufficient capacity to control the speed of the ca.r, could have been stopped in from 350 to 400 feet, when traveling 35 miles per hour. It is further found that plaintiff took charge of the car at Indianapolis; that on the day before, its braking equipment was carefully tested by competent employes; it was equipped, when delivered to plaintiff, with an approved air brake, “apparently” in good condition (italics ours), and was, when delivered, subject to the control of the motorman, and, “under ordinary conditions,” was of sufficient capacity to control the speed of the ear; the brake was not weak, nor worn, and “apparently not” broken; the accident occurred a short distance north of Noblesville; between Indianapolis and Noblesville, on the
The following answers were made to the following interrogatories: 73. “Did the defendant after said car was delivered to plaintiff at Indianapolis on that occasion and before the alleged injury know or have any knowledge whatever that the brakes on said car had failed to work properly and control the speed of said car between the time when said car left Indianapolis and the time the plaintiff attempted to stop the same on account of said approaching freight car?” “No.” 76. “Did defendant after said ear was delivered to plaintiff at Indianapolis on that occasion and before the happening of the alleged injury know or have any knowledge whatever that the brakes on said car were defective between the time said car was delivered to plaintiff at Indianapolis and the time when plaintiff attempted to stop the same on account of said approaching freight car?” “No.” 79. “From the time said car left the shops of defendant at Anderson and until said car was delivered to the plaintiff at Indianapolis, what knowledge or notice did the defendant have that the air brake on said car was defective?” “None.” 82. “From the time said car left the shops of defendant at Anderson and until said car was delivered to plaintiff at Indianapolis, what knowledge or notice did defendant have that the air brake on said car was not of sufficient capacity to control the speed of said car?” “None.” 86. “Had the equipment of said car composing said power air brake been procured by defendant from manufacturers of recognized standing as manufacturers of power air brakes for use on interurban cars?” “Yes” 87. “Was the power air brake the kind then in common use on interurban trolley cars such as those operated by defendant at the time?” “Yes.” 96. “If you answer that there was any defect or want of capacity in the brakes of said passenger car after the same was delivered to plaintiff on
It is contended by appellant that when it provided reasonably safe equipment, such as was in general use on well managed roads, and caused it to be inspected by competent persons, and was without any knowledge, actual or constructive, of defects afterward developing, it had fully discharged its duty to appellee, and that the facts specially found show that this duty had been performed.
Appellee insists that interrogatories Nos. 73, 76, 79 and 82, on the question of defendant’s knowledge of the defective brake, must be held to relate only to actual knowledge by reason of the fact that in other interrogatories submitted such intent is manifest; but if it should be held that such interrogatories called for answers on the subject of constructive notice, they cannot be considered because constructive notice is a mixed question of law and fact about which it is not competent to interrogate the jury. Our statute relating to the submission of interrogatories contemplates only special findings of fact in the answers thereto, and it is improper to submit questions which require findings compounded of law and fact. §572 Burns 1908, Acts 1897 p. 128; Elliott, App. Proc. §753; Chicago, etc., R. Co. v. Burger (1890), 124 Ind. 275, 24 N. E. 981; Chicago, etc., R. Co. v. Wilfong (1910), 173 Ind. 308, 90 N. E. 307; Cleveland, etc., R. Co. v. Asbury (1889), 120 Ind. 289, 22 N. E. 140; Chicago, etc., R. Co. v. Ostrander (1888), 116 Ind. 259, 15 N. E. 227, 19 N. E. 110; Board, etc. v. Bonebrake (1896), 146 Ind. 311, 45 N. E. 470; Korrady v. Lake Shore, etc., R. Co. (1892), 131 Ind. 261, 29 N. E. 1069.
An allegation in a pleading of lack of knowledge, in-eludes constructive as well as actual knowledge, unless the context evinces the contrary. Consolidated Slone
Appellee claims that the statute imposed upon appellant the absolute duty to equip the car according to the provisions of the act, and this duty was not discharged by showing that the car was equipped with an approved air brake, in “apparent” good condition, not “apparently” broken, and of sufficient capacity to control the car “under ordinary conditions”; that appellant’s lack of knowledge of the defect in the brake and the exercise of ordinary care in equipment and inspection do not meet the requirements of the act. The statute in question is similar to the act of Oongess of March 2, 1893 (27 Stat. at Large 531, chap. 196, U. S. Comp. Stat. 1901 p. 3174), which rendered it unlawful for any carrier engaged in moving interstate traffic by railroad, to use on its line any locomotive engine not equipped with a power driving-wheel brake and appliances for operating the train brake system, or to run any train in such traffic that had not a sufficient number of cars in it so equipped with power or train bx’akes that the engineer on the locomotive drawing such train can control its speed. The Government brought an action against the Chicago, Burlington and Quincy Railway Company to- recover certain penalties, which, it was alleged, had been incurred by the defendant for violations of the act. At the tx’ial, a verdict of guilty was directed by the district court, axid the judgment was affirmed by the Circuit Court of Appeals. Chicago, etc., R. Co. v. United States (1909), 170 Fed. 556, 95 C. C. A. 642. On a writ of certiorari to the latter coxirt, the judgment was affirmed by the Supi’eme Court of the United States. Chicago, etc., R. Co. v. United States (1911), 220 U. S. 559, 31 Sup. Ct. 612, 55 L. Ed. 582. The above case was decided after appellant had filed its
In enacting our statute, — evidently modeled after the act of Congress, — it cannot be doubted that the legislature was not satisfied with the duty and liability of carriers to their servants, as defined by common-law rules, and, by this act of 1907, it intended that such duty and liability should be measured by a stricter rule. This rule is set out in the act, in language so plain as to practically foreclose discussion as to the legislative intent. We think the duty prescribed by the act of 1907 is absolute, and is not discharged by proof of the use of ordinary care in equipment and inspection. St. Louis, etc., R. Co. v. Taylor (1908), 210 U. S. 281, 28 Sup. Ct. 616, 52 L. Ed. 1061; United States v. Atchison, etc., R. Co. (1908), 163 Fed. 517, 90 C. C. A. 327; St. Louis, etc., R. Co. v. Neal (1906), 83 Ark. 591, 98 S. W. 958. Under such construction of the statute, it is evident that the answers to interrogatories on the subject of equipment are not in irreconcilable conflict with the general verdict.
Appellee’s injury was proximately caused by the failure of the brake to control the speed of the car. The special findings are silent on the question as to what was the matter with the brake. The statute, in express terms (§5291 Burns 1908, Acts 1907 p. 186), absolved appellee from the application of the rules of contributory negligence and assumed risk. The doctrine of res ipsa loquitur applies. Cleveland, etc., R. Co. v. Hadley (1908), 170 Ind. 204, 208, 82 N. E. 1025, 84 N. E. 14, 16 L. R. A. (N. S.) 527, 16 Ann. Cas. 1, and cases cited. The happening of the accident, under the facts found by the jury, was prima facie evidence of appellant’s negligence, which imposed on it the obligation to show some excuse for the prima facie failure of duty on its part. Terre Haute, etc., R. Co. v. Sheeks (1900), 155 Ind. 74, 56 N. E. 434. No such excuse is shown by the findings. The facts specially found do not contradict the general verdict in its finding that appellee’s injury was proximately caused by appellant’s failure to equip the car with an air brake, in good condition, or of sufficient capacity to control the speed of the car.
There is no reversible error, and the judgment should be affirmed. It is suggested that appellee died since the submission of the cause, and, therefore, the judgment is affirmed as of the date of submission.
