Caughell v. Indianapolis Traction & Terminal Co.

• Decision Date: 27 March 1912
• Docket Number: No. 7,525.,7,525.
• Citation: 97 N.E. 1028,50 Ind.App. 5
• Parties: CAUGHELL v. INDIANAPOLIS TRACTION & TERMINAL CO.
• Court: Indiana Appellate Court

50 Ind.App. 5

97 N.E. 1028

CAUGHELL

v.INDIANAPOLIS TRACTION & TERMINAL CO.

No. 7,525.

Appellate Court of Indiana, Division No. 2.

March 27, 1912.

Appeal from Superior Court, Marion County; P. W. Bartholomew, Judge.

Action by Flora J. Caughell against the Indianapolis Traction & Terminal Company. From a judgment for defendant, plaintiff appeals. Reversed and remanded.F. F. James, James & Martin, and D. J. Hefron, for appellant. F. Winter and W. H. Latta, for appellee.

IBACH, P. J.

Appellant sued appellee for personal injuries alleged to have been caused by appellee's conductor negligently starting a street car on which she was a passenger while she was in the act of alighting therefrom, thus throwing her to the street and severely injuring her. Trial by jury resulted in a verdict for appellee. Appellant's evidence tended to support the theory of her complaint; that of appellee tended to show that she had jumped off after the car was started.

The only errors argued are that the court erred inrefusing to give to the jury instruction 1 at appellant's request, and in giving instructions 7 and 9 upon its own motion.

[1] Instruction 1 is: “The court instructs the jury that the law requires the employés of street railways to do more than to stop reasonably long enough for passengers to safely alight from cars. They are bound and required to ascertain and know that no passenger is in the act of alighting from the car before putting it in motion again. If the employé fails in that respect, then such failure is imputed to his employer, and is actionable negligence on the part of the employer, and it is no excuse for the employé or his employer to show that the car on the particular occasion was operated in the usual manner.” This instruction would be justified on the authority of Anderson v. Citizens' St. R. Co., 12 Ind. App. 194, 38 N. E. 1109,Crump v. Davis, 33 Ind. App. 88, 70 N. E. 886, and Union Traction Co. v. Siceloff, 34 Ind. App. 511, 72 N. E. 266. But in the case of Louisville, etc., Traction Co. v. Korbe, 93 N. E. 5, 94 N. E. 768, the Supreme Court of this state disapproved such an instruction, upon the ground that employés of street railways must use the highest degree of care to see and know that no passenger is alighting from a car before putting it in motion, but are not required absolutely to see and know. The Appellate Court cases above cited have been superseded by this decision. No error was committed by the trial court in refusing to give instruction 1.

[2] By his instruction 7, the court told the jury that if plaintiff, a passenger on appellee's car, who had paid her fare, had given signals to stop said car at Twenty-Third street, and the car was stopped for the purpose of allowing her to alight at said place, then, “under the law, it was the duty of the conductor and the motorman of said car to allow the plaintiff sufficient time to safely alight upon the street at said crossing, and if you find that while said car was standing still and the plaintiff was in the act of leaving said car, and in plain view of the conductor of the defendant, in control of said car, the said conductor gave the starting signal,” and the car was started, and by reason of the starting of the car plaintiff was thrown to the street and injured, and defendant was guilty of negligence in starting the car, and plaintiff's negligence did not contribute thereto, then the starting of the car would be the proximate cause of her injury, and the verdict should be for the plaintiff. This was the only instruction given embracing the theory of plaintiff's action, and it did not adequately state the duty of appellee's conductor toward appellant. The duty of the conductor of a street car who stops his car for passengers to alight is twofold. He must wait a reasonable length of time for the passenger to alight, and then he must exercise the highest degree of...