Citizens' St. R. Co. v. Jolly

• Decision Date: 16 June 1903
• Citation: 67 N.E. 935,161 Ind. 80
• Parties: CITIZENS' ST. R. CO. v. JOLLY.
• Court: Indiana Supreme Court

161 Ind. 80

67 N.E. 935

CITIZENS' ST. R. CO.

v.JOLLY.

Supreme Court of Indiana.

June 16, 1903.

Appeal from Circuit Court, Hamilton County; John F. Neal, Judge.

Action by John S. Jolly against the Citizens' Street Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed.

Gavin & Davis, W. H. Latta, and Winter & Winter, for appellant. Joseph B. Kealing, M. M. Hugg, and Kane, Kane & Kane, for appellee.

JORDAN, J.

Appellee, by a jury in the lower court, was awarded damages to the amount of $7,000 for personal injuries received through the alleged negligence of appellant. The trial court required him to remit $2,000 of this amount, and, over appellant's motion for a new trial, rendered judgment for the remainder. Overruling a demurrer to each paragraph of the complaint and denying a motion for a new trial are the errors urged for the reversal of the judgment. Constitutional questions being ining involved, the appeal comes direct to this court.

The complaint is in two paragraphs. The facts alleged in the first show that appellant (defendant below) at the time of the alleged injury was a common carrier, and operated, managed, and controlled a street railroad in the city of Indianapolis, Marion county, Ind., over which cars for the carriage of passengers for hire were propelled by the means of electricity. Among the several lines which it operated is one known as the “College Avenue Line,” which passes in part over Pennsylvania street, in said city-a street running north and south. On the 16th day of March, 1899, and for a long time prior to that time, the defendant, for the purpose of receiving and discharging passengers, stopped its cars which ran over the College Avenue Line near the south side of Market street, where the latter street intersects Pennsylvania street. This point or corner was and had been a place where many passengers took passage on the defendant's cars running over the aforesaid line. On the said day the plaintiff (appellee herein) and many other persons were standing at said corner or point, to take passage on the cars going north on the College Avenue Line. Plaintiff desired and intended to become a passenger upon one of said cars running over this line. A train of cars running north over said College Avenue Line approached the point where he was standing. This train was composed of two cars; the first being a “motor car,” and the second a “trailer,” which was attached to and drawn by the motor car. The first or motor car, it is alleged, was “crowded with passengers, even to the rear platform.” These cars were stopped at said corner of Market and Pennsylvania streets, where the plaintiff and other passengers were standing in order to take and receive passengers thereon. The persons waiting at said corner or point, as aforesaid stated, began to board the car. At the very time appellee was in the act of boarding it, and just as he had stepped upon the step of the rear platform of the motor car, and as he was standing thereon, holding onto the post attached to said platform, being unable to proceed and move forward any further at the time, and while waiting for those in front of him to move and go forward, the conductor, a servant of the defendant in charge of said car, without waiting for him to obtain or secure a better and safer place on the car, carelessly and negligently pulled the bell cord thereof, and gave the motorman the signal to start the car. Said motorman at once responded to said signal, and suddenly, carelessly, and negligently started the car forward “with a jerk” of such force as to jerk, pull, and break plaintiff's handhold loose from the post to which he was holding, and to throw him to the ground from the step of the platform upon which he was standing. He was thereby, it is alleged, thrown off upon the ground in such a manner as to throw his right foot upon the railroad track, whereby the said trailer or rear car passed over said foot, cutting it off at the ankle, and also inflicting other injuries upon him. It is alleged that the aforesaid injuries were “caused solely by the fault, carelessness, and negligence of the defendant and its servants and employés as aforesaid.” The pleading further shows that the defendant's occupation was that of a traveling salesman, and at the time of the alleged accident he was earning the sum of $150 per month. The pleading further discloses the character of the injuries received, and other facts in relation to the damages sustained. The second paragraph is similar to the first, and may be said to embrace all of the facts alleged in the latter, and, in addition thereto, charges that at and near the intersection of Market and Pennsylvania streets there is a curve in the defendant's railroad track, which turns to the east on Market street; that on the day plaintiff was injured the frog and plates supporting the tracks where the accident occurred were old, loose, and much worn, so that the cars passing thereover would jump and jerk, which condition of the track was well known to the defendant. When the plaintiff was upon the step of the car, as shown in the first paragraph, the conductor, it is averred, in charge of the car, without waiting for him to secure or reach a better and safer place upon said car, “carelessly and negligently signaled the motorman to start the car, and that thereupon said motorman” suddenly, carelessly, and negligently started the car forward, over and along the said frog and plates supporting the tracks as aforesaid stated, thereby causing said car to be started with a jerk, and with such force as to throw the plaintiff from the platform step where he was standing, thereby resulting, as alleged, in the injuries to him charged in the first paragraph. It is further alleged in this second paragraph that the injuries sustained were caused solely by the fault, carelessness, and negligence of the appellant and its servants, who, well knowing the condition of the said track, started the car forward thereover in the manner aforesaid, and started it before plaintiff could reach a place of safety upon the car. It is further averred that the conductor saw and knew the situation of the plaintiff upon the step of the car at the time, but notwithstanding that fact he gave the signal as aforesaid alleged to the motorman to start the car, etc.

It may be said that both the paragraphs in question are specimens of loose pleading, and to this extent, at least, are open to criticism. Counsel for appellant contend, however, that each is insufficient as against a demurrer for the following reasons: First, it does not appear therein that the injuries sustained by appellee were the result of the alleged negligence of the appellant; second, that the facts disclose that appellee was guilty of contributory negligence; third, neither paragraph shows that appellee intended to become a passenger for hire, or that he was able or willing to pay his fare; fourth, it does not appear that appellee, in getting upon the step of the car and taking hold of the post as alleged, was making an effort to become a passenger upon the car for hire, or with such purpose or intent; fifth, each paragraph of complaint is said to be bad because the absence of contributory negligence on the part of the plaintiff is not shown.

The rule is well settled by repeated decisions of this court that a general allegation of negligence in a complaint or other pleading is sufficient to withstand a demurrer for insufficiency of facts. The Ohio, etc., Ry. Co. v. Walker, 113 Ind. 196, 15 N. E. 234, 3 Am. St. Rep. 638;Louisville, etc., R. Co. v. Bates, 146 Ind. 564, 45 N. E. 108, and cases there cited. In each of the paragraphs in question it is alleged and shown that the injury of which the plaintiff complains was caused “solely by the fault, carelessness, and negligence of the defendant and its servants and employés as aforesaid.” This cannot be said to be a mere recital of a fact, but it is a direct averment thereof, and is sufficient to disclose that the injury sustained was the direct result of the negligence imputed to appellant. Brinkman v. Bender, 92 Ind. 234, and cases there cited; Louisville, etc., R. Co. v. Kendall, 138 Ind. 313, 36 N. E. 415. We conclude that the first objection urged against each of the paragraphs is not sustained.

The contention of appellant that the facts alleged in both paragraphs of the complaint establish that appellee, in boarding the car at the time he did, was guilty, per se, of contributory negligence, is not tenable. The mere fact that the car was “crowded” with passengers when he attempted to take passage thereon would not alone constitute negligence per se, or as a matter of law. Marion St. R. Co. v. Shaffer, 9 Ind. App. 487, 36 N. E. 861; Booth, Street Railways, § 355; Beach on Contributory Negligence (3d Ed.) § 293; Dudley v. Front St., etc., R. Co. (C. C.) 73 Fed. 128.

It appears that, for the purpose of receiving and discharging passengers, it was the custom of appellant to stop its cars at the point where appellee on the day of the accident in question was, along with others, waiting and intending to take passage on a north-bound car over the College Avenue Line. The car in question, although crowded at the time, was nevertheless stopped by the servants of appellant in charge thereof at this point to take passengers aboard. Stopping the car or cars at this place as was customary was at least impliedly an invitation to those there in waiting to take passage thereon if they so desired. Conner v. Citizens' St. R. Co., 105 Ind. 62, 4 N. E. 441, 55 Am. Rep. 177;Citizens' St. R. Co. v. Twiname, 111 Ind. 587, 13 N. E. 55; Booth, Street Railways, § 342.

If appellant, under the circumstances, by stopping its cars at the time and place as was done, did not thereby intend or desire, by reason of the fact that the car or cars were already crowded, to invite persons waiting at that point to take passage thereon, it...