Citizens Street Railroad Company v. Clark

• Decision Date: 19 May 1904
• Docket Number: 4,533
• Citation: 71 N.E. 53,33 Ind.App. 190
• Parties: CITIZENS STREET RAILROAD COMPANY v. CLARK
• Court: Indiana Appellate Court

71 N.E. 53

33 Ind.App. 190

CITIZENS STREET RAILROAD COMPANY v. CLARK

No. 4,533

Court of Appeals of Indiana

May 19, 1904

From Marion Circuit Court (10,551); H. C. Allen, Judge.

Action by George W. Clark against the Citizens Street Railroad Company. From a judgment for plaintiff, defendant appeals.

Affirmed.

F Winter, Clarence Winter and W. H. Latta, for appellant.

J. M Bailey, for appellee.

ROBY J. Comstock, J., concurs in the conclusion.

OPINION

ROBY, J.

Action by appellee. Verdict and judgment for $ 500. Motion for a new trial overruled. Judgment on verdict. The errors assigned challenge the action of the trial court in overruling appellant's demurrer to the fourth and fifth paragraphs of complaint and its motion for a new trial. The substance of the fourth paragraph was that appellee was a passenger upon one of appellant's street cars, and that he was, before he reached his destination, unlawfully assaulted, and ejected from the car, and beaten, to his damage. The fifth paragraph is not materially different. It is averred in them both that the appellant was a corporation organized under the law of this State and engaged in operating a street railway for hire in the city of Indianapolis, and that "the defendant, by its agents, servants, and employes, assaulted and beat," etc. The objection made is that the acts of the employes are not shown to have been done in the course of their employment or in furthering the master's business.

The averment that the assault was committed by the defendant through its employes is sufficient as a matter of pleading. Wabash R. Co. v. Savage, 110 Ind. 156, 159, 9 N.E. 85; Feighner v. Delaney, 21 Ind.App. 36, 51 N.E. 379. Appellee being a passenger on its car, appellant owed the duty to protect him from assault and injury by its servants, its liability for breach of such duty not depending upon the assault being committed by one acting within the scope of his employment. Indianapolis Union R. Co. v. Cooper, 6 Ind.App. 202, 33 N.E. 219; Baltimore, etc., R. Co. v. Norris, 17 Ind.App. 189, 60 Am. St. 166, 46 N.E. 554. The demurrer was therefore properly overruled.

The point is made that the evidence fails to show that appellee was on a car operated by appellant. Citizens St. R. Co. v. Stockdell, 159 Ind. 25, 62 N.E. 21. The action was brought against the Citizens Street Railroad Company. It appeared, filed answer, and made defense. It was admitted during the trial that such company was at the time of the accident complained of engaged in hauling passengers for hire in the city of Indianapolis. The evidence shows the occurrence to have taken place upon one of the streets of said city, and that appellee was ejected with some force from one of the "company's" cars by the "company's" employes. Many references are made to the "company" by the witnesses. The inference that the appellant corporation was the company referred to, was one the jury might, we think, properly draw.

The testimony relative to the issuance of a transfer ticket was of the same character so far as appellant's connection therewith was concerned. Appellee testified that he paid his...