77 Ind. App. 669 | Ind. Ct. App. | 1922
This is an action by appellee against appellant to recover damages for personal injuries sustained by appellee.
The complaint avers that appellant owns a traction line operating between the town of Monroeville and the city of Fort Wayne, Indiana, upon which it operates freight and passenger cars and that it was so operating such cars on December 16, 1919. The line of traction
Appellant earnestly contends that the verdict is not sustained by sufficient evidence, and that the undisputed
The question presented is not one of imputed negligence which doctrine, so far as it relates to a driver and a passive guest, has been repudiated by the courts of this state, but is one of contributory negligence, assuming but not deciding that appellant was negligent.
With the undisputed facts before us, and confronted as we are with the foregoing authorities, we must say that it is certainly a close question as to whether appellee was or was not guilty of contributory negligence as a matter of law. We must therefore at least be certain that the verdict of the jury in his favor was not influenced by some other prejudicial error.
The court further says: “At common law the fact that there was no electric bell or watchman might be shown, as a circumstance attending the operation of the car, from which to determine, in connection with the amount of travel habitually passing over the crossing and all other circumstances, whether or not the operation of the car in the manner and at the speed that it was operated was negligent. But a duty to run a car with care in view of the fact that there are no special warnings at the crossing is not the same as a duty to provide or maintain a bell or watchman no matter how the car is run. There is no duty under the common law to'place a bell, watchman, or other special warning at a highway crossing in the country.” This case is followed in the case of Lake Erie, etc., R. Co. v. Johnson (1922), 191 Ind. 479, 133 N. E. 732, de
It is stated in Terre Haute, etc., Traction Co. v. Phillips, supra, that the mere fact that an interurban car was run over a highway crossing in the country at any speed consistent with the safety of the passengers, however fast that might be, would not in itself, constitute negligence as affecting a traveler passing over the track at such crossing. Authorities are cited to sustain this statement of the law, but the instruction here involved comprehended more than is stated above as the rule. Appellant would have the court say that the business of transporting passengers and property is of the highest importance, in other words, that such business is more important than the safety of the general public. It cannot be said that the railroads, whether interurban or steam, can be permitted to operate their trains wholly without regard to the safety of human life. There are circumstances under which the company, notwithstanding the high duty it owes to its passengers and to the property which it transports to convey it with expedition, owes as well some duty to those who are crossing its right of way.
Appellant complains of the action of the court in refusing to give other tendered instructions but such in
For the foregoing errors the judgment is reversed with instructions to the trial court to grant a new trial.