161 N.E. 671 | Ind. Ct. App. | 1928
On October 25, 1921, minor son of appellee was a passenger on one of appellant's traction cars which at the time was being operated by electric power northward upon tracks laid in Nineteenth street in the city of Terre Haute. The car was of the type known as a "one-man" car, and was in sole charge of the motorman, whose station was near the door which formed the exit of the car. It being the desire of Evans to alight from the car at the intersection of Nineteenth street with a street of the city named and known as Beech street, he so informed the motorman. Upon arrival of the car at the Beech street intersection, the motorman stopped the car and opened the door, which was on the east side, in order that Evans might alight. Whereupon Evans passed through the door, down the steps, and *326 alighted upon the street pavement. At the time the door was opened, and as Evans was alighting from the car, an automobile operated by Charles H. Pierce was approaching the traction car along and upon the east side of Nineteenth street from the north at a high and dangerous rate of speed. The motorman saw the automobile approaching but failed to warn Evans thereof. Evans alighted from the car and was going to pass to the east curb, but before he could do so, he was struck by the automobile and killed. Thereafter this action was commenced by appellee against appellant and Pierce to recover damages for the loss of the services of the deceased son of appellee. The complaint is in a single paragraph; the charge against the traction company being the alleged negligence of the motorman in failing to warn Evans of the approaching automobile, and in permitting him to leave the car and alight therefrom at the time. The negligence alleged against Pierce is that he was, at the time, operating the automobile on the wrong side of the street at a high rate of speed, and without giving any signal of his approach to the traction car. The specific averments of the complaint charging the traction company with negligence are that the motorman "carelessly and negligently opened the door and invited said Byron Evans to alight from its car at a time when said automobile was approaching from the north on the east side of Nineteenth street at said dangerous and high rate of speed as aforesaid; that Byron Evans had no notice or knowledge of the approach of said automobile, and his attention was attracted to getting off the car, and that said defendant's motorman, so in charge of the car, then and there carelessly and negligently failed and refused to give said Evans any notice or warning of the approach of said automobile before he alighted from said street car in front of and in the path of said automobile."
The traction company filed its separate motion to require *327 plaintiff to make his complaint more specific by alleging facts upon which he based the conclusion that the motorman failed to give Byron Evans any warning of the approach of the automobile. The motion having been overruled, the traction company filed separate demurrer to the complaint. In the memorandum filed with the demurrer, it is asserted that the complaint is insufficient to state a cause of action against the traction company for the reason that no facts are pleaded to show that there was any duty resting upon the company to give plaintiff's son any warning of the approach of the automobile, and no facts to show that the automobile was not in plain view of such passenger at the time he was alighting from the car; and that no facts are pleaded showing that the alleged negligence of the motorman in failing to give the warning was the proximate cause of the accident. Demurrer was overruled, and a reply in denial closed the issues. Trial resulted in a verdict and judgment for appellee, plaintiff below, and against both defendants. Only the traction company appeals.
The only error assigned which will require consideration is the action of the court in overruling demurrer to complaint.
It appears from the complaint that the street car was stopped by the motorman at the request of appellee's decedent, at a place where it was customary to discharge passengers. There is no averment in the complaint, and there was no contention at the trial, that there was any defect in the street pavement at that point. It is specially averred that appellee's decedent was an able-bodied young man, nineteen years of age, and in full possession of his faculties.
At the time appellee's son lost his life, as averred in the complaint, there was in full force a statute making it unlawful for the operator of a motor vehicle to pass a *328
street car at a lateral distance of less than twenty feet, 1. on the streets of any town or city of this state, when such car had been stopped to permit passengers to alight. Acts 1917 p. 337. Facts are not averred as to the width of the street, and no facts are set forth which show that the motorman in charge of the street car had knowledge at the time that Pierce, in the operation of the automobile, would violate the statute. If the width of the street was sufficient, the motorman had the right to assume, in the absence of knowledge to the contrary, that, in compliance with the law, Pierce with his automobile would pass to the east of the street car a distance of twenty feet; if the width of the street was such as to make it impossible for the automobile so to pass, the motorman had a right to assume, in the absence of knowledge to the contrary, that Pierce would stop his automobile while passengers were alighting from the car.Louisville, etc., Traction Co. v. Lottich (1914),
Street railway companies operate their cars on tracks laid in streets, and use the streets in common with other vehicles; they have no control over such highways or the traffic thereon. 2. It follows, therefore, that the duties owing by street railways to passengers alighting from their cars are not the same as are the duties of those commercial railroads which operate their cars and discharge passengers on their own rights of way over which they have complete control. Creamer v. WestEnd Railway (1892),
In the light of the legal principles stated, can it be said that, under the facts averred in the complaint, it was the *329 duty of appellant's motorman to warn appellee's son of the approach of the automobile? If so, the judgment must be affirmed, otherwise, reversed.
The general rule, supported by the great weight of authority, is that a street railway company owes no duty to warn or protect passengers, while leaving the car, from obvious dangers 3. arising from automobiles which are being operated in the street. There is, perhaps, no better way to discuss the reasons for the rule than to review some of the authorities which support it. Our excuse for quoting at length from some of these authorities, is that they are from other jurisdictions, and are not, therefore, of easy access to many members of the profession in this state.
Oddy v. West End Street Railway (1900),
In harmony with the foregoing authorities, and in accordance with the general rule, we hold that, under the facts as 4. averred in the complaint, no duty rested upon appellant to warn appellee's *333 son of the approach of the automobile which at the time was being operated by Pierce, and that the trial court erred in overruling the demurrer to the complaint.
Reversed.