40 Ind. App. 184 | Ind. Ct. App. | 1907
The action was brought by Turpie Romans, as administratrix of Samuel Romans, deceased, to recover damages from the appellant for the death of the deceased, alleged to have been caused by the negligence and carelessness of the servants and employes of appellant. The complaint was in two paragraphs.' In the first it is alleged
The second paragraph alleges the same facts as are shown in the first, except that in addition to these it alleges that on July 25, 1904, the plaintiff’s decedent, Samuel L. Romans, was in the employ of the defendant, and he was going home from his place of work on the evening of said day, after his hours of labor were over; that before he started home he applied for and procured, under the rules of the defendant, from the person placed in charge of said matter by said defendant, a ticket which enabled him to ride on any passenger-car of said defendant that went in the direction of his home; that, under the rule of said defendant in force at and before said date, a ticket was given to said decedent on the evening of said date entitling him to ride on a passenger-car going west on said Washington street in the direction of his home, and he was so allowed to ride for his own convenience, and not because it was necessary in the performance of any labor for the defendant, the Indianapolis Traction & Terminal Company.
Defendant demurred to the second paragraph of the complaint, on the ground that the same did not state facts sufficient to constitute a cause of action, which demurrer was overruled. Defendant filed an answer in two paragraphs.
Plaintiff replied in three paragraphs, the first alleging facts showing that on the day of his death decedent was in the employ of defendant, but at the time he was killed his day’s work was done and he was riding upon a ear for his own convenience, and was not engaged in any work of any kind for defendant while riding on said car; that it was also true that he was riding upon a ticket or pass given him by defendant, but he was not required to ride upon it, and it could be used by him upon any car operated on the line over which it was good. The ticket used by the decedent not only expedited the business of defendant, but was issued and given to decedent for his own convenience, and was so being used by him at the time of the injury. The second paragraph alleges the same facts as are alleged in the first paragraph of reply, and in addition adds the language on the face of the ticket, to wit:
“Indianapolis Traction & Terminal Company, issued by Department No. 1. Employes’ ticket. Good for one ride over line punched only when presented by the person to whom it was issued, subject to the rules of the company”
The errors relied upon are the action of the court in overruling the demurrer of defendant to the second paragraph of the complaint, in overruling defendant’s motion for a judgment in its favor upon the answers of the jury to interrogatories submitted to them, notwithstanding the general verdict, and in overruling defendant’s motion for a new trial.
The court, in giving to the jury instruction five, said, in substance, that the violation of ordinance fifty of the city of Indianapolis was negligence per se. The giving of this instruction is one of the reasons for a new trial. The admitting of the ordinance in evidence was excepted to, and is made another reason for a new trial. Said ordinance was intended to regulate the manner of crossing steam railroads by street-cars in the city of Indianapolis, and provided that it should be unlawful for any conductor in charge of any streetcar using the streets of said city, for the purpose of carrying passengers or freight, to permit such cars to cross or enter upon the track or tracks of any steam railroad in said city
There are many cases in which employes are held to he fellow servants while traveling in various ways and hy various methods of transportation as an incident of their employment, where they were at the time in the service of the defendant and subject to the control of a foreman. In McDaniel v. Highland Ave., etc., R. Co., supra, it is held that where an employe of his own volition rides on a passenger-car, he cannot assert the rights of an employe when they differ from those of a passenger. The case at bar is not one in which the employe was being transported in the immediate connection with his employment. Such cases are distinguishable from the one at bar. Dickinson v. West End St. R. Co., supra; Doyle v. Fitchburg R. Co., supra; Peterson v. Seattle Traction Co., supra. Decedent’s time was his own. It was not part of his duty to defendant to take the car on which he was riding and go to his home. He might go where, and in any way, he pleased. He was not riding in the line of his duty in the course of his employment.
Judgment affirmed.