44 Ind. App. 480 | Ind. Ct. App. | 1908
Appellee sought to recover damages for personal injuries alleged to have been sustained through the negligence of the appellant, its agents and servants, while she
In the reply brief it is conceded that each paragraph of the complaint states a cause of action. Appellant offered no evidence.
The following is a brief outline of the facts alleged and supported by the evidence: Appellant operates an electric street railway system in the city of Jeffersonville, Indiana. One of its lines extends eastwardly on Chestnut street from Spring street, upon which, at the time of the accident in question, it regularly operated electric ears for the transportation of passengers, as a common carrier. The cars belonged to appellant and were solely under its care, control, inspection and management. It likewise furnished the electric motive-power by which the cars were propelled. On the night of January 31, 1904, between 8 o’clock and 9 o’clock, appellee, for the purpose of being transported to her home on Chestnut street, took passage on one of appellant’s cars, and paid the customary fare therefor. It was a small-sized electric ear, equipped with front and rear vestibule, with a trolley-pole operating on an overhead wire, with controllers and brakes, and was in all respects similar in appearance and in construction to such electric cars as are universally in use on the streets of towns and cities. There was nothing about the appearance of the car to indicate to appellee that it was not in a safe condition, nor that there was any danger, from 'any of its defective parts, of an explosion or of its taking fire. The night was dark and cloudy. After the car had run several blocks, the controller on the front platform,
Counsel for appellant refer to the rule that only the pleadings, the general verdict, and the answers to interrogatories can be considered in determining the force of such interrogatories on the motion in question. Attention is called to the fact that each paragraph of the complaint charges negligence in the care or in the operation of the controller, whereby sparks and flames of fire and flashes of electricity were produced, which alarmed plaintiff and caused her to jump from the car while it was in motion, resulting in her injury. It is insisted that as the burning out of the controller was thus shown to have been the result of some unforeseen and unaccountable cause, appellant was not guilty of negligence in failing to foresee and guard against an unforeseen and unaccountable cause.
Interrogatory forty-four and its answer read: “Was there an inherent defect in the controller, the cause of which neither science, mechanical or electrical research has been able to discover, avoid or remedy? A. No.” Interrogatory seventy-six and its answer read: “Were there many unknown causes that would burn out a controller ? A. No. ’ ’ The interrogatories and answers just quoted are inconsistent with the answer to the sixty-third. Interrogatory thirty-eight and its answer read: “Do controllers upon streetcars bum out although in apparent good order, and although daily inspected and found in good condition? A. No.” In other interrogatories it was found that the car was not inspected the night before the accident, and that the appel
Where answers to interrogatories conflict, or are inconsistent with one another, or are uncertain in their meaning, they will not control the general verdict. They cancel or neutralize one another, and do not overthrow the general verdict. Wabash R. Co. v. Biddle (1901), 27 Ind. App. 161; Cleveland, etc., R. Co. v. Wuest (1908), 41 Ind. App. 210.
Instruction two, given at the request of defendant, stated that if, while plaintiff was riding as alleged in her complaint, the controller on the end of the ear burned out, and thereby smoke and flames of fire came forth into the vestibule of the ear, but that such flames of fire were confined to the vestibule
In other instructions given, the jury was told that it must be satisfied by the preponderance of evidence that the defendant placed the plaintiff in peril by the burning out of the controller, if it did so burn out, before it could find for the plaintiff; that if it should find from the evidence that the plaintiff, by her rashness, heedlessness or carelessness, contributed to the accident, the verdict should be for the defendant; that if the plaintiff injured herself by jumping from the moving car, as the result of a rash apprehension of danger which did not exist, the verdict should be for defendant; that if the plaintiff, without just cause, jumped from the car at a time when it was going at a rate of speed at which it was dangerous to jump, the verdict should be for defendant; that, with reference to whether the plaintiff had just cause to jump from the car, it should consider the conduct of any or all other passengers on the car, and might consider the fact, if found to be a fact, that none of the other passengers jumped from the car.
Instruction twelve reads: “It sometimes happens that from the very nature of an accident it is disclosed that an injury to a passenger might as well have happened through his own negligence as that of the common carrier, and the injury, under such circumstances, raises no presumption that the carrier was negligent, and if you are satisfied from the evidence that the plaintiff needlessly and rashly contributed to her own injury, then your verdict should be for* the defendant.” The instructions -taken together upon this question were favorable to appellant.
Judgment affirmed.