188 Ind. 189 | Ind. | 1919
— This was an action by appellant against appellee for personal injuries'. A jury found for the appellee and with the general verdict returned answers to interrogatories. The questions presented arise on a motion for a new trial.
Appellee’s street car track is on Main street, a north and south street of the city of Elkhart, and crosses six tracks of the Lake Shore and Michigan Southern Railway Company. The north two are called the old tracks, the next two the new track's, or Air Line, the next two are freight tracks. About seven or eight feet north of the north rail of the old tracks are gates to stop the
The complaint alleges that appellant became a passenger at a regular stopping place just north of the crossing, as the car was starting over the crossing; that the car was crowded, and it -was impossible for him to obtain a seat; that the aisles of said car were also crowded; that appellant was standing on the front step of the car and was in the act of stepping on the front platform when the car began to jolt, because of the rough and uneven condition of the tracks over the crossing; .that the jolting and swaying of said car was increased by the excessive rate of its speed; that because of the jolting and swaying of the car and unevenness of the track he was thrown off. The jury found by special interrogatory that there were no more than six persons in the car; that nobody was in the aisles or on the platforms; that appellant attempted to board the car, as we have heretofore said, at or near the fourth track south from the north gates; that in attempting to get on the car he missed his hold with his right hand; that he missed his footing on the step and fell.
It will be conceded that the words “sober man” do not indicate a legal degree of care; that is to say, the care exercised by an ordinarily prudent person in like circumstances. 'But it will be observed that there is coupled with this, “and as described in the foregoing instructions.” The foregoing instructions had told the jury that appellant was only required to use the care that an ordinarily prudent person would use in like circumstances ; and in this very instruction itself the jury are told that intoxication would not prevent a recovery. But beyond all this, the jury were asked by a special interrogatory whether appellant was intoxicated, and they answered: “Not sure.” So, whatever view may be taken of this instruction, appellant was not harmed by it.
Instruction No. 13 practically set out the situation at this crossing and told the jury that if they found that there were six tracks in three pairs; that trains were running over these tracks; that safety gates were there; that appellee had no stopping place between said gates on said crossing, and after detailing the situation as to the crossing, it then told the jury that appellant had no right whatever to board appellee’s car while in motion in the act of running over said crossing between said safety gates, and that they should consider said facts, if. the same were established by the evidence, in determining whether the appellant was guilty of contributory negligence in attempting to board the car.
Considering the circumstances of this case as shown by the evidence and shown by the answers of the jury to special interrogatories, it is difficult to conceive how instructions could be erroneous enough to work a reversal of the cause.
The judgment of the trial court is therefore affirmed.
Note. — Reported in 122 N. E. 657. Carriers: when intending passenger actually becomes such, 1 Ann. Cas. 605, 9 Ann. Cas.' 1104, Ann. Cas. 1917C 1206. See under (21 14 Ann. Cas. 973; (4) 10 C. J. 1089; (5) C. J. 945.