Anderson v. Scholey

• Decision Date: 17 May 1888
• Docket Number: 13,243
• Citation: 17 N.E. 125,114 Ind. 553
• Parties: Anderson et al. v. Scholey
• Court: Indiana Supreme Court

17 N.E. 125

114 Ind. 553

Anderson et al. v. Scholey

No. 13,243

Supreme Court of Indiana

May 17, 1888

From the Dearborn Circuit Court.

The judgment is affirmed, with costs.

N. S Givan and S. H. Stewart, for appellants.

J. B Coles, G. M. Roberts and C. W. Stapp, for appellee.

OPINION

Mitchell, C. J.

This was an action by William Scholey against Mason W. Anderson and Timothy McHenry to recover damages for an injury sustained by the overturning of a stage-coach in which the plaintiff was being carried as a passenger, and of which Anderson and McHenry, who were partners, were the proprietors.

The complaint charges that the defendants undertook to carry the plaintiff from the city of Aurora to Rising Sun on the evening of the 15th day of January, 1885, and that by reason of the negligence of the defendants in failing to provide lights, the night being dark, so as to enable the driver to see and keep in the road, and by providing unreliable horses, and a negligent and inefficient driver, the vehicle was upset, whereby the plaintiff was severely injured.

The defendants answered the general issue, and specially, by way of accord and satisfaction, that, before the bringing of the suit, by agreement between the plaintiff and defendants, the latter had paid the charges of the physicians for their services in waiting upon the plaintiff after he had received the injuries complained of, and had, also, permitted him to ride in their coaches from Rising Sun to Aurora and return free of charge, which payment of the physicians' bill and riding free of charge had been accepted by the plaintiff in full satisfaction of all liability of the defendants on account of the injuries complained of.

Without demurring to the special answer, the plaintiff replied in denial, and, upon trial by a jury, the latter had a verdict in his favor. From the judgment which followed this appeal is prosecuted.

On behalf of the appellants, it is first contended that there is no connection shown between the particular acts of negligence charged and the injury complained of, and hence that the court erred in overruling the demurrer to the complaint. The point is not well made.

The gravamen of the complaint is, that, while the relation of passenger and carrier existed between the plaintiff and the defendants, the former was injured by the negligent overturning of the vehicle in which he was being carried. The relation of carrier and passenger having been established, the fact that the passenger sustained an injury by the overturning of the carriage made a prima facie case of negligence against the carrier.

The carrier then assumed the burden of showing that he used all reasonable and practicable precaution in providing a sufficient conveyance, together with safe horses, and other suitable and proper appliances for the journey, and that the driver was qualified for the position, and that he acted with reasonable skill and caution; in short, it became the duty of the carrier to rebut the presumption of negligence which arose from the happening of the accident, by showing that the injury was not occasioned by any want of skill or prudence on the part of the driver, or by any neglect or want of practicable care or foresight on the part of the carrier. Cleveland, etc., R. R. Co. v. Newell, 104 Ind. 264 (54 Am. R. 312, 3 N.E. 836), and cases cited; Woolery v. Louisville, etc., R. W. Co., 107 Ind. 381, 8 N.E. 226; Louisville, etc., R. W. Co. v. Pedigo, 108 Ind. 481, 8 N.E. 627; Stokes v. Saltonstall, 13 Pet. 181.

The omission to state just how the defendants' failure to supply the carriage with lights on a dark night, or to furnish safe and tractable horses and a careful and efficient driver, resulted in the overturning of the carriage, did not make the complaint bad. They were causes adequate to have produced the injurious result. It was the duty of the defendants to explain the causes of the accident, so far, at least, as to show that it was not attributable to any omission on their part, or on the part of the driver, who was their agent.

Concerning the contention that the evidence does not sustain the verdict, it is enough to say, if the jury believed the plaintiff's testimony in relation to the occurrence there can be no doubt but that the verdict is abundantly sustained. It is true the driver testified that he was in the road, pursuing the right track, and that he pulled to the left, thereby upsetting the conveyance over the bank, because the plaintiff told him repeatedly he was too far to the right. The plaintiff denies this. However the fact may be, it was the duty of the defendants to supply the coach with a driver who knew the way for himself, and who...