Citizens' St. Ry. Co. v. Merl

• Decision Date: 20 February 1901
• Citation: 59 N.E. 491,26 Ind.App. 284
• Parties: CITIZENS' ST. RY. CO. v. MERL.
• Court: Indiana Appellate Court

26 Ind.App. 284

59 N.E. 491

CITIZENS' ST. RY. CO.

v.MERL.

Appellate Court of Indiana.

Feb. 20, 1901.

Appeal from superior court, Marion county; James M. Leathers, Judge.

Action by John Merl against the Citizens' Street-Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Ferdinand Winter, S. M. Chambers, and Will H. Latta, for appellant. Chas. A. Dryer, for appellee.

WILEY, J.

Appellant owned and operated a system of street-railway lines in Indianapolis. One of the lines was on Washington street, and consisted of a double track thereon, and poles between the tracks, upon which the electric wires were attached. Appellant was repairing its tracks on East Washington street, and on account thereof a portion of the north track between Highland avenue and Cruse street was torn up, and the cars could not run thereon. It became necessary, on account of this condition of the north track, to switch the west-bound cars to the south track, and run them on the south track past that part of the north track that was being repaired. The cars, when thus running on the south track, had to be entered by persons desiring to be carried thereon from the north side; that being the side next to the poles between the tracks. Appellee desired to enter a west-bound car as a passenger. He presented himself at a place along the line where cars usually stopped to take on and discharge passengers, and signaled the motorman of an approaching car, which was an open summer car, said car being equipped with a running board, or platform, running horizontally along the north side of the car, which was used by persons entering and alighting. After he had signaled the motorman that he desired to take passage, the motorman “slowed up” the car until it came nearly to a stop. He then stepped upon the running board near the front end of the car, and found the seats on the front end and middle of the car crowded with passengers, and he was compelled to go to the rear end of the car to obtain a seat or standing room As soon as he stepped upon the running board, the car was started up rapidly and suddenly forward, and was soon under full headway. While he was attempting to go to the rear of the car to obtain a seat, and while walking on the running board, without any fault on his part, and without any warning from the servants in charge of the car, he was struck in the back and head by coming in contact with one of the poles above described, and was injured. These facts are all pleaded in the complaint. A demurrer to the complaint was overruled. The case was put at issue by an answer in denial. Trial by jury, resulting in a general verdict for appellee. The jury also made a special finding of facts by their answers to interrogatories. Appellant moved for a new trial, and for judgment on the answers to interrogatories, and these motions were overruled.

While all these adverse rulings are assigned as errors, they are all waived by a failure to discuss them, except as to the overruling of the motion for a new trial; and the argument of counsel upon such ruling is addressed solely to the giving, and refusing to give, certain specified instructions. We will dispose of the questions thus raised in the order of their discussion.

Counsel for appellant, at the proper time, tendered a series of instructions, and requested that they be given to the jury. The court refused to give the third, fourth, fifth, eighth, tenth, and eleventh, and counsel urge that in such refusal the court erred.

By the third instruction the court was requested to say to the jury that employés of the company in charge of a car are not bound to anticipate that persons who are not at the proper place to take passengers are intending to get upon the car while it is in motion between stopping places, and such employés are not bound to keep a lookout to prevent such persons who may so jump upon the car from being injured by coming in contact with obstructions while in the act of getting on the car. If we concede this instruction to state correctly an abstract proposition of law, yet it was not error to refuse it, for two reasons: (1) Because it was not applicable to the facts; and (2) because the court gave other instructions on its own motion embodying the same subject-matter, and upon the whole as favorable to appellant as instruction No. 3, tendered by it. Appellant defended upon the theory that appellee got upon its car at a point where the car did not and was not compelled to stop to receive passengers, and that he did not on account thereof become a passenger, and that it owed him no duty as a passenger. This theory, however, is completely overthrown by the finding of the jury that appellee went to a point on the line of the road where cars stopped to receive and discharge passengers; that he signaled the motorman to stop; that the car was brought nearly to a stop; and that he thereupon got on the running board of the car, and was attempting to enter the car to find a seat, when he was injured. The slackening of the speed of the car on the signal given by appellee, he being at a place where passengers were received, was an invitation to him to enter the car and become a passenger. Conner v. Railway Co., 105 Ind. 62, 4 N. E. 441; Railroad Co. v. Spahr, 7 Ind. App. 23, 33 N. E. 446.

Instruction No. 4, tendered by appellant, embraced substantially the same proposition as No. 3, except it contained an additional statement relating to appellee's own negligence. That part of the instruction relating to appellee getting on the car between crossings is not applicable to the facts, as we have seen, and that part of it relating to appellee's negligence is fully covered by instruction No. 20, given by the court. That part of the instruction is as follows: “Negligence of the defendant in running past the plaintiff upon the street, whether he had signaled or not, or whether he was at a station for receiving passengers or not, would not authorize or make it right for the plaintiff to commit an act of negligence in getting upon the car to prevent being left behind. And if you are of the opinion that, at the time of his accident, plaintiff voluntarily threw himself upon a known or perfectly apparent danger, or assumed a perfectly clear or palpable risk, he cannot now recover damages of the defendant, even though the servants of the defendant were also negligent.” This part of the instruction was at least as favorable to appellant as the one the court refused, and is certainly a plain and correct statement of the law.

The court did not err in refusing to give instruction No. 5 tendered by the appellant. The first part of the instruction is objectionable because it is not pertinent to the facts. That part of the instruction which properly stated the law relating to what would constitute negligence on the part of the appellee was fully covered by other instructions.

The eighth instruction tendered by appellant contained a correct statement of the law; but there was no error in refusing to give it, because the same subject-matter was fully covered by other instructions. That reversible error cannot be predicated upon the refusal to give an instruction that is a clear and correct statement of a proposition of law, where the same has been substantially embodied in another or other instructions, is well settled by the authorities.

By its tenth instruction, appellant asked the court to explain to the jury what would constitute negligence on the part of its servants in charge of the car, under the circumstances as they then existed. This instruction correctly stated the law; but it was not error to refuse it, for, taking the instructions as a whole, they fully and amply explained to the jury what would and what would not constitute...