Citizens' St. Ry. Co. v. Damm

• Decision Date: 20 November 1900
• Citation: 25 Ind.App. 511,58 N.E. 564
• Parties: CITIZENS' ST. RY. CO. v. DAMM.
• Court: Indiana Appellate Court

25 Ind.App. 511

58 N.E. 564

CITIZENS' ST. RY. CO.

v.DAMM.

Appellate Court of Indiana.

Nov. 20, 1900.

Appeal from circuit court, Henry county; William O. Barnard, Judge.

Action by Emelie Damm against the Citizens' Street-Railway Company. From a judgment in favor of plaintiff, and from an order denying a new trial, defendant appeals. Affirmed.Ryan & Thompson and M. E. Forkner, for appellant. Templar, Ball & Templar and Gregory, Silverburg & Lotz, for appellee.

WILEY, J.

Appellee was plaintiff below, and sued appellant to recover damages for injuries received by reason of appellant's alleged negligence. The amended complaint, which was in a single paragraph, avers that appellee and her husband were riding in a buggy drawn by one horse, and were crossing Main street where it intersects Plum street in the city of Muncie; that appellant owned and operated a line of street railway on Main street; that while so driving in a careful, cautious, and proper manner the horse attached to the buggy in which they were riding became frightened, reared, pitched, and became unmanageable, and that appellee and her husband were unable to control the horse, and it was about to run away; that thereupon appellee's husband got out of the buggy, and took hold of the horse by the bits, in order to manage and hold him; that said horse, being unmanageable, passed out, upon, and over appellant's track, while they were exercising all their powers to control him, but were unable to do so; that when said buggy was upon said track, and said horse in such frightened condition, one of appellant's cars propelled by electricity was approaching appellee in the buggy at a distance of 200 to 400 feet from where she was upon the track, and the said buggy and appellee were in full view of appellant's motorman and servants in charge of said car; that appellee and her husband, by “calls, screams, and loud hallooing and waving of hands at, to, and towards defendant's said motorman, employés, and servants in charge of said car, demanded them to stop said car.” It is also averred that the space between said approaching car and said buggy when it was stopped on the track was an open and level street in full view of said employés, so that they could and did see the condition appellee was in, and that said horse and buggy were on the track most of the time, and, when not on, so close to it that the car could not pass without striking them; that said servants could have seen that said horse and buggy were on the track; that the horse was frightened and unmanageable; that she could not extricate herself from said buggy; that said horse and buggy could not be removed from the track; and that, in total disregard of appellee's peril, appellant, by its servants, ran said car at a speed of 10 miles per hour, without checking or attempting to check the speed, against and upon said horse, buggy, and appellee. It is further alleged that she was unable to get out of the buggy, and was unable to get the horse and buggy off the track so as to avoid a collision with the car. The complaint described at great length and with particularity the various injuries appellee received from the collision, and avers that such injuries were received without any fault or negligence on her part or on the part of her husband. A demurrer for want of facts addressed to the complaint was overruled. Appellant answered by denial. Trial by jury resulted in a general verdict for appellee for $2,250. The jury also found specially as to certain facts by answers to interrogatories. Appellant moved for judgment on the answers to interrogatories, for a new trial, and for a venire de novo, and each of these motions was overruled.

It is proper to say that there were two trials of this cause below. The first trial resulted in a general verdict for appellee, and with the general verdict the jury found specially as to certain facts by answers to interrogatories. After the return of the verdict and the answers to interrogatories, appellant moved for a new trial, and for judgment on the answers to interrogatories notwithstanding the general verdict. This motion was sustained, and the motion for judgment was overruled. All these adverse rulings, including the overruling of the motion for judgment in the first trial, are assigned as errors. Appellant's learned counsel have presented their views of the law questions involved in this appeal in voluminous briefs, and most of their discussion is addressed to the question of appellee's contributory negligence. The argument embraced three pivotal propositions: (1) The sufficiency of the amended complaint, (2) the sufficiency of the evidence to support the verdict, and (3) the overruling of the motion for judgment on the answers to interrogatories. We are not convinced by the argument of counsel that the complaint is defective. The evident theory of the complaint is that appellee was placed in an unexpected and hazardous position by circumstances over which she had no control, from which she could not extricate herself, and that appellant's servants in charge of the car saw her in such condition in sufficient time to have averted the accident by the exercise of ordinary care. It is shown that the accident occurred at a street crossing, and in this connection it must be remembered that the street-car company at such point has no superiority of right over that of a person about to cross the track at such point. We think the facts stated in the complaint bring the case within the rule, so far as the sufficiency of the complaint is concerned, that, where one person sees another in a position of peril from which he is unable to extricate himself with reasonable care, it is the highest duty of such person to so act as not to increase the peril; and, if he does act in a manner to increase the danger with full knowledge of the facts, it is negligence for which he may be required to respond in damages. See Railroad Co. v. Juday, 19 Ind. App. 436, 49 N. E. 843, and cases there cited. See, also, the recent case of Railway Co. v. Ross (Ind. App., decided present term) 58 N. E. 535. Here the complaint charges that the servants of the appellant saw the danger in which appellee was placed, and yet continued to run the car at full speed, and made no effort to either check or to stop it. This case, so far as the facts charged, is similar in all essential respects to the case of Railway Co. v. Maynard, 5 Ind. App. 372, 32 N. E. 343, in which it was held that those in charge of an engine upon a street-car track, seeing a team of horses near the track showing signs of fright, must, in order to relieve the company from liability, heed the danger, slacken speed, and, if necessary to avoid injury, stop the train. See, also, Railway Co. v. Stanger, 7 Ind. App. 179, 34 N. E. 688; Railroad Co. v. Nash, 1 Ind. App. 298, 27 N. E. 564. The demurrer to the complaint was properly overruled.

We will next consider the overruling of appellant's motion for judgment on the answers to interrogatories. The jury found that appellee was driving with her husband for her health; that she was pregnant with child, and had been in that condition for three months; that they drove from Plum street, which intersects Main street, and attempted to cross the latter street, along and upon which appellant owns and operates a street-car line; that immediately before the collision the horse appellee's husband was driving balked, and was rearing and jumping upon or near the track; that appellee could not have gotten out of the buggy without great danger of receiving bodily injury; that the appellant's employés could have stopped the car in time to have prevented the collision, if they had used reasonable and ordinary diligence; that when the buggy stopped on the track the car was 125 to 150 feet away, and that appellant's servants could have seen the buggy by the exercise of reasonable diligence; that the said servants checked the speed of said car, but did not stop it; that said servants were guilty of negligence in failing to stop the car, and thus have prevented the collision; that, as a result of the collision, appellee was injured in the head, arm, side, and abdomen; that she has not recovered from her injuries; that she was damaged in the sum of $2,250; that the horse and buggy were dragged by the car 12 to 15 feet; that the motorman in charge of the car was in a position to see the peril appellee was in for more than 100 feet immediately before the...