Citizens' St. R. Co. v. Reed

Decision Date01 November 1898
PartiesCITIZENS' ST. R. CO. v. REED.
CourtIndiana Supreme Court

OPINION TEXT STARTS HERE

Appeal from superior court, Marion county; J. L. McMasters, Judge.

Action by Nancy E. Reed, administratrix, etc., against the Citizens' Street-Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed.

W. H. H. Miller, John B. Elam, and Will H. Latta, for appellant. Ayers & Jones, for appellee.

HACKNEY, C. J.

This was an action for personal injuries resulting in the death of John W. Reed, alleged to have been sustained by reason of the appellant's negligence, and without any negligence on the part of the decedent. The trial resulted in a special verdict in the form of interrogatories and answers returned by a jury. The first alleged error of the trial court was in charging the jury that, “if the evidence is evenly balanced as to any fact inquired about in an interrogatory, then you should find that such fact does not exist.” The burden rested upon the appellee to prove by a preponderance of the evidence the alleged negligence of the appellant, and that the decedent was free from contributory negligence. To sustain this burden it was indispensable that the special verdict should find facts enforcing the legal inference of negligence on the one side, and freedom from negligence on the other. No fact tending to establish either the conclusion of negligence on the part of the appellant, or of due care on the part of the decedent, could be found upon “evenly balanced” evidence. These propositions are so thoroughly settled in the law of this state as to admit of no doubt. The theory of the case was that the appellant was negligent in running a street car without a gate or barrier on the front platform next to the poles suspending the trolley wire; that the decedent was employed by the appellant as a road officer, with the duty to inspect cars while in use, and direct their repair and improvement, including the addition of gates, when necessary, and as to this was superior to those running the cars; that he boarded the car numbered 342 by the rear platform, and passed to the front platform, with a headlight in his hand, and when he had gone upon said platform he lost his balance, and fell from the platform, at the end thereof next to the poles, which was not guarded or protected by a gate; and that in falling he struck one of such poles. Relating to the question of contributory negligence, the jury were asked and answered the following: “Did said decedent at the time and place mentioned enter the wrong car with the headlight by mistake? Answer. No.” “When decedent passed through the door of said car, or onto the front platform thereof, could he see, by looking, that the end of said platform towards the south was open? Answer. No.” “Did decedent, immediately after he was recognized by said motorman, endeavor to get off of said car with the headlight? Answer. No.” “At the time said Reed stepped upon the platform, could he see that the safety gate was not on the side next to the poles? Answer. No.” “Was the fact that the safety gate was not upon the front end of said car, upon the side next to said poles, known to said Reed at that time? Answer. No.” These inquiries were as to primary or subsidiary facts having more or less influence upon the ultimate fact, namely, did Reed exercise that degree of care which a man of ordinary care and prudence would have exercised under like circumstances? As to this ultimate fact there were few other interrogatories and answers, and these were as to Reed's duty to inspect running cars, and order them in for repairs; the rainy and dark condition of the evening; that he knew the condition of the track, the position of the poles, and the swaying motion of the cars; that the headlight was for car numbered...

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5 cases
  • Indianapolis Street Railway Co. v. Brown
    • United States
    • Indiana Appellate Court
    • January 6, 1904
    ...of the instruction condemned in that case is practically the same as that of the last clause above quoted. The difference is that in the Reed case the burden was the plaintiff to establish both the defendant's negligence and resulting damage, and her own freedom from contributory negligence......
  • Southern Ry. Co. v. Pauw
    • United States
    • Indiana Supreme Court
    • July 1, 1910
    ...the inference so drawn by them was the finding which they made by their answer to the interrogatory in question. Citizens' Street Ry. Co. v. Reed, 151 Ind. 396, 51 N. E. 477. It follows that the finding of the jury upon interrogatory No. 2 is a finding of a fact, and not a legal conclusion.......
  • Southern Railway Co. v. DePauw
    • United States
    • Indiana Supreme Court
    • July 1, 1910
    ... ... was the finding which they [174 Ind. 614] made by their ... answer to the interrogatory in question. Citizens St. R ... Co. v. Reed (1898), 151 Ind. 396, 51 N.E. 477 ... It follows that the finding of the jury upon interrogatory ... two is a finding of a ... ...
  • Citizens' Street R. Co. v. Reed
    • United States
    • Indiana Supreme Court
    • November 1, 1898
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