60 Ind. App. 294 | Ind. Ct. App. | 1915
Appellee recovered a judgment against appellant for $750 for personal' injuries alleged to have been received by her through appellant’s negligence while she was a passenger riding in the caboose of one of appellant’s freight trains.
The errors assigned and relied on for reversal of
In substance it is charged in the complaint that appellant is a common carrier and on October 11, 1910, was engaged in the business of carrying both freight and passengers from the city of Terre Haute to Indianapolis, Indiana; that at Chamberlain Crossing one of appellant’s trains collided with a farm wagon and severely injured a man and woman; that appellee resided near the place of collision and went to the relief of the injured; that appellant placed the injured persons in the eaboose of a freight train to transport them to the city of Terre Haute and place them in a hospital; that Mrs. Caveny, the injured woman, was crushed, bruised and unconscious, and at the request and solicitation of the conductor of the train appellee entered the caboose to care for Mrs. Caveny until she reached the hospital; that the conductor'promised to give her transportation to Terre Haute and return home if she would do so and she agreed to comply with the request and entered the caboose and cared for the injured lady continuously until the train reached Terre Haute; that Mrs. Caveny was on a cot and appellee sat beside her on a chair furnished her by appellant; that by reason of the aforesaid facts appellee was a passenger on appellant’s said train and it was appellant’s duty to use the highest degree of care to avoid injuring her; that appellant failed to perform such duty and when the train was approaching the city of Terre Haute, “negligently and carelessly, suddenly and without warning and with great force and violence applied the air brakes to said train, while said train was running at a rapid rate of speed, thereby causing said train to come to a
Instruction No. 17 is further criticised for the alleged reason that to defeat appellee’s recovery it required appellant to do more than show by the evidence that appellee had failed to make out her case by a fair preponderance of evidence, including the presumption of negligénce against appellant on proof of the happening of the accident as alleged in the complaint. The instruction is not fairly subject to such interpretation, though the language in one phrasejif the instruction is not the most apt to convey the meaning which is clearly expressed by the instruction considered as an entirety. Nor is the objection tenable that it gave the jury an erroneous idea of the burden of proof. Cleveland, etc., R. Co. v. Hadley (1908), 170 Ind. 204, 210, 82 N. E. 1025, 84 N. E. 14, 16 Ann. Cas. 1, 16 L. R. A. (N. S.) 527; Indianapolis St. R. Co. v. Schmidt, supra.
The other questions discussed are. in effect disposed of by what we have said and by the decisions cited. The ease seems to have been fairly tried on the merits and no intervening errors are shown which are, prejudicial to appellant. Judgment affirmed.
Note. — Reported in 108 N. E. 778. As to res ipsa loquitur doctrine, see 113 Am. St. 999. As to liability for injuries to passengers inside the car from sudden starting or stopping of train, see 34 L. R. A. (N. S.) 229. On presumption of negligence from injury to passenger, see 15 L. R. A. 33; 13 L. R. A. (N. S.) 601; 29 L. R. A. (N. S:) 808. As to who is a passenger of a carrier, see 1 Ann. Cas. 451. See, also,'under (1) 6 Cyc 540, 544; (2) 6 Cyc 626; (3) 6 Cyc 591; (4) 6 Cyc 652; (5) 6 Cyc 628.