177 Ind. 38 | Ind. | 1912
Appellee recovered a judgment against appellant in the court below, for damages for personal injuries alleged to have been sustained by her while a passenger on one of appellant’s street-cars.
A reversal of that judgment is asked by appellant on the ground that the trial court'erred in overruling a motion made by it for judgment in its favor on answers to special interrogatories, which the jury returned with a general verdict for appellee, and that error was also committed in overruling appellant’s motion for a new trial.
To the extent needed to be set out to intelligently exhibit and consider the questions involved in the appeal, the averments of the complaint are, in substance, that appellee entered one of appellant’s street-cars to be carried as a passenger on it, over the route and line regularly traversed by it, to her intended destination at the terminus of the line, and paid the usual fare therefor; that for the purpose of relaying its track and improving it, appellant had, at a certain point on the line, excavated and torn away that part of the street occupied by its track, and more than a foot on either side of it; that through appellant’s carelessness and neglect the space on each side of its track was excavated six inches below the grade of the street, was rough and uneven and filled with loose earth and loose stones, and was thereby rendered unsafe and wholly unfit as a place for passengers to alight; that, in consequence of the work being done, the distance from the lowest step of the car to the ground alongside of it, at the point where appellee was required by appellant to alight, as hereinafter stated, was not less than two feet, and too great for safety, as appellant well knew;
A second paragraph of complaint was different from the first only in that it alleged that the street was being im
alighting, and the conditions present, did not give time or opportunity for close inspection of the place where she must alight, and the rule of ordinary care, as applied to her conduct, did not require a close and critical study of the ground before she trusted herself upon it. She had not completed the passage of the trip on which appellant was carrying her, and she was still its passenger, to whom it owed a duty involving a high degree of care for her safety. And while she was not absolved from using ordinary care in getting off the car, such care is affected by the circumstances and conditions, and the fact that she was entitled to rely, to some extent, on the belief that she would not be required to alight at an unfit and dangerous place.
It may be said that no interrogatory was submitted to
There is an earnest controversy between counsel for the opposing parties as to the degree of care by which appellant’s duty to appellee should be measured.
Brief criticism is made of four instructions tendered by appellee and given by the court. What has been said in considering the other questions applies to the objections to two of the instructions, and it is clear that the jury was not misled to the harm of appellant by the giving of the other two, even if they be justly subject to the complaint made of them.
The judgment of the lower court is affirmed.
Note.—Reported in 97 N. E. 151. See, also, under (1) 38 Cyc. 1927; (2) 6 Cyc. 607, 615; (3) 38 Cyc. 1926; (4) 6 Cyc. 595; 118 Am. St. 461; 4 L. R. A. (N. S.) 122; (5) 6 Cyc. 607; 16 L. R. A. (N. S.) 467; (6) 6 Cyc. 591; (7) 6 Cyc. 628. As to the liability of a street railway company for defect in track or street see 15 L. R. A. (N. S.) 840.