53 Ind. App. 659 | Ind. Ct. App. | 1913
— This is an appeal from a judgment in favor of appellee in an action brought against it for damages for injuries alleged to have been sustained by appellant when attempting to board one of appellee’s cars, at the intersection of Wenzel and Jefferson Streets, in the city of Louisville, Kentucky. The issues of fact were presented by a complaint and a general denial. A motion for a new trial was overruled and this ruling presents the only error assigned and relied on for reversal. The only grounds of this motion presented and argued are those which predicate error upon the giving of instructions Nos. 1 and 2 respectively, tendered by appellee. Before setting out either of these instructions we-will indicate those averments of the
We will at this point also indicate some of the evidence to which said instructions were applicable and to which we will desire to refer in our disposition of the questions presented. The appellant testified to substantially the following facts among others: She started home from Louisville between 5 and 6 p. m.; went to the corner of Wenzel and Jefferson Streets to catch her car. She had her four year old daughter with her and was carrying two pasteboard suit boxes each being about two feet long and three inches thick, and strapped together. As the car approached she signaled it to stop, and it stopped “on the northeast corner. You always stop on * * * the north side of Jefferson and the east side of Wenzel.” The car was crowded. The vestibule where she entered was narrow, with three steps leading up to it and there were four men on the back platform. She lifted the little girl up, some gentleman helping her, put the boxes on the step and started to get on, and (using her words) “put one foot on the step and one hand on the side, and looked up to see if some one would not help me
It was to this particular question and issue that instruction No. 1, was directed and particularly applicable, hence its importance and controlling influence on the result of the case is apparent. It follows: Instruction No. 1 “* * * If you find from the evidence that the conductor was inside of the car performing his duties at the time the car stopped on the north side of the intersection of Wenzel and Jefferson Streets in the city of Louisville, Kentucky, for the purpose of allowing the plaintiff to board it and that the conductor immediately started back to the rear platform of the car for the purpose of seeing that the plaintiff safely got aboard the car before it again started, and that while making his
In view of the conclusion reached, we deem it unnecessary to set out or discuss the second instruction objected to, further than to say that in its main features it has the approval of the Supreme Court in the cases of: Richardson v. Coleman (1892), 131 Ind. 210, 29 N. E. 909, 31 Am. St. 429; Keesier v. State (1900), 154 Ind. 242, 247, 56 N. E. 232; In re Darrow and Talbot (1910), 175 Ind. 44, 58, 59, 92 N. E. 369. One of its statements may possibly be open to criticism, but when considered in its entirety, we do not think it contained any announcement that could be said to be prejudical or harmful, to appellant’s cause, and hence its giving did not, in any event, constitute reversible error.
Because of the error in giving instruction No. 1, the motion for new trial should have been sustained. The judgment is therefore reversed with instructions to the trial court to grant a new trial, and for further proceedings consistent with this opinion.
Note. — Reported in 102 N. E. 455. See, also, under (1) 6 Cyc. 602; (2) 6 Cyc. 611, 612; (3) 6 Cyc. 536, 538; (4) 6 Cyc. 612; (5) 29 Cyc. 634; (6, 8) 38 Cyc. 1629; (7) 38 Cyc. 1632; (9) 3 Cyc. 386; (10) 38 Cyc. 1815; (11) 38 Cyc. 1639, 1809; (12) 38 Cyc. 1626, 1627, 1632. As to proximate and remote causes of injury from negligence, see 50 Am. Rep. 569; 36 Am. St. 807; see, also, note to Heney v. Dennis (Ind.), 47 Am. Rep. 881. As to carrier’s duty to give notice of starting of train, see 7 Am. St. 835. As to who are passengers and when they become such, see 61 Am. St. 75. As to negligence in starting street ear with jerk, see 23 L. R. A. (N. S.) 891; 34 L. R. A. (N. S.) 225. For presumption of negligence from sudden start, stop, jolt, or jerk of car, see 13 L. R. A. (N. S.) 611; 29 L. R. A. (N. S.) 814, On the liability of