Citizens' St. Ry. Co. v. Twiname

• Decision Date: 27 September 1887
• Citation: 111 Ind. 587,13 N.E. 55
• Parties: Citizens' St. Ry. Co. v. Twiname.
• Court: Indiana Supreme Court

111 Ind. 587

13 N.E. 55

Citizens' St. Ry. Co.

v.Twiname.

Supreme Court of Indiana.

September 27, 1887.

Appeal from superior court, Marion county.

H. C. Allen, for appellant. Harrison, Miller & Elam, for appellee.

Niblack, J.

This was an action by Louisa B. Twiname against the Citizens' Street-Railway Company to recover damages for injuries alleged to have been sustained by her while riding on one of the company's cars on the seventh day of May, 1883. The answer was in general denial. There was evidence tending to show that, at the time the injuries complained of were received, the plaintiff resided on Massachusetts avenue, in the north-eastern part of the city of Indianapolis; that on the morning of the day named she came down on an errand to a wholesale business house on South Meridian street, near the Union Depot; that, after completing her business with the wholesale house, she went across to a point nearly opposite, on Illinois street, where she found a Massachusetts avenue street car, belonging to the street-railway company, standing on the track, headed in a northerly direction, which was the direction in which she wanted to go on her return to Massachusetts avenue; that she entered the car in question with other passengers, and, after depositing her car-fare in the box provided for that purpose, took her seat; that the car soon started northward along Illinois street, where in a short time it came to a place at which employes of the company were digging under and repairing the track; that at that point the car was run off or precipitated from the track, by means of which the plaintiff was thrown heavily against one of the seats, and then to the bottom of the car; that, sick and faint, she was assisted out of the car; that she was then about to seek other means of conveyance home; that one of the company's employes thereupon insisted that she had better wait until the car should be replaced upon the track, as it would be in a short time, when she could continue on her journey in the same car; that she did so wait for a short time, and until the car was replaced upon the track, when she re-entered it and took a seat; that, after proceeding a short distance, the car again ran off the track, as a result of which she was again thrown heavily down; that on reaching home the plaintiff was in much pain, and ascertained to be severely bruised. There was also evidence tending to show that the plaintiff either must have known or could easily have seen that the track was torn up and being repaired at the places at which the car ran off. There was likewise some evidence to prove that, when the plaintiff was about to re-enter the car after it first ran off the track, one of the company's employes warned her not to do so until after it had passed the place at which it went off the second time, and that she refused to heed the warning, but as to that the evidence was seriously conflicting.

The court, trying the cause at special term, on its own motion gave the jury a series of instructions, the fourth and eighth of which were as follows: “(4) A street-car company is a common carrier, and, while it is not an insurer of the safety of its passengers, it is bound to exercise the highest degree of skill and foresight for the safe carriage of such passengers upon its cars, and this care and foresight must extend, not only to the running of its cars, but also to the construction and repairs of its track. And for injuries caused to a passenger, by reason of failure to exercise such skill and foresight, it is liable to such passenger, provided, such passenger was not guilty of any negligence directly and materially contributing to produce such injuries.” “(8) Again, it does not necessarily follow that a passenger is guilty of negligence in getting upon a car, even if it be proved that such passenger knew that the track was unsafe. For example, if the car upon which the plaintiff was riding at the time of the accident in controversy was standing upon the track, and she and others were permitted to get on and deposit their fares, this may be considered as sufficient evidence, in the absence of evidence to the contrary, of an invitation by the company to her to take passage; and, if she availed herself of such invitation, she cannot be deemed guilty of negligence in so doing merely from the further fact, if such is the fact, that she knew the track was being replaced or repaired, and was in a dangerous condition; for she had a right to presume, in the absence of knowledge to the contrary, that the defendant had used or would use due care to avoid the danger to passengers incident to the dangerous condition of the track; that is, such care as a person of the highest degree of skill and foresight, with knowledge of all the existing facts and circumstances, would probably have used, in view of such dangers, to guard against accidents to passengers by reason thereof. But if the plaintiff knew that there was a dangerous place in the track, and was warned by the employes of the defendant not to get in the car until after it had gotten over such place, but she persisted, in spite of such warning, in getting in and taking the risk, and after so getting in she received the injuries of which she complains, then she must be deemed guilty of contributory negligence, and cannot recover.”

A verdict and judgment for the plaintiff followed, and the judgment thus obtained was affirmed at the general term. Questions were reserved, and have been elaborately presented upon the instructions set out as above.

A railway company is a common carrier of passengers as well as of freight. A street-railway company is also a common carrier of passengers, with duties and responsibilities entirely analogous to and substantially the same as those of a railway company in the carriage...