Citizens Street Railroad Company v. Hoffbauer

• Decision Date: 09 January 1900
• Docket Number: 2,884
• Citation: 56 N.E. 54,23 Ind.App. 614
• Parties: CITIZENS STREET RAILROAD COMPANY v. HOFFBAUER
• Court: Indiana Appellate Court

56 N.E. 54

23 Ind.App. 614

CITIZENS STREET RAILROAD COMPANY v. HOFFBAUER

No. 2,884

Court of Appeals of Indiana

January 9, 1900

From the Marion Superior Court.

Reversed.

Ferdinand Winter and W. H. Latta, for appellant.

J. W Kealing and O. B. Iles, for appellee.

ROBINSON J. Henley, J., concurs in conclusion reached.

OPINION

ROBINSON, J.

Action for damages for personal injuries. Appellee was a passenger on appellant's car, and while passing from his seat along the foot-board of the car was struck by a trolley pole near the track. Demurrers to each of the two paragraphs of complaint overruled. Answer of general denial. Jury returned a general verdict for appellee with answers to interrogatories. Appellant's motions for judgment on the answers, and for a new trial, were overruled.

The first paragraph of complaint avers that on August 2, 1895, appellee became a passenger on one of appellant's cars running on Hill avenue, Indianapolis, intending to go to the central portion of the city; that, at the time the car was backing on Hill avenue, in a westerly direction towards the central portion of the city; that Hill avenue has no poles between or immediately near the tracks; that he took a seat on the rear seat as such car was backing down; the car was an open or summer car, with a platform or running-board lengthwise on one side to permit the ingress and egress of passengers, the opposite side being screened and guarded to prevent passengers from entering or leaving the car on that side, and which side was placed and run next to the center or pole side of the tracks where poles were maintained; that appellant maintained a double track running north on Columbia avenue, and between the tracks maintained poles dangerously near the tracks; that appellant ordinarily ran cars north on Columbia avenue on the east or right-hand track, with the closed side of the car next to the poles, and the running-board side on the east or outside of the track to permit with safety the entrance and alighting of passengers; that when the car reached Columbia avenue en route to the central portion of the city, appellant, instead of proceeding down to the central portion of the city, proceeded north up Columbia avenue, and instead of running the car on the east track, as such cars run ordinarily, it was negligently and carelessly run on the west track, thus placing the running-board next to the iron poles; that the employes in charge of the car negligently failed to warn appellee of the danger from the poles; that when the car passed up Columbia avenue the seat occupied by appellee was so arranged that his back was towards the motorman, and his face towards the conductor; that appellee believed the car was being run on the east track as ordinarily; that he could not see and did not know the car was on the west track with the running-board next to the poles; that his position was such that he could not and did not see the poles nor danger of stepping on the running-board; that the car was negligently run at a great rate of speed; that when appellee discovered the car was going north on Columbia avenue, and believing the same would continue north, and being desirous of reaching the central portion of the city, without fault on his part, and totally ignorant of the danger of stepping upon the running-board, ignorant of the fact that the car was on the west track, and without opportunity of knowing and observing the same, and believing the car was on the east track, and relying and believing that the car was being properly managed, stepped upon the running-board and started towards the conductor, who stood at the rear end, to procure a transfer ticket to a south bound car, intending to alight and proceed to his destination; that the conductor negligently and carelessly failed to warn appellee of his danger, and negligently failed to signal the car to stop; that while moving along the running-board toward the conductor, in plain view of the conductor, and totally unconscious of the danger, and without fault on his part, and wholly because of the carelessness and negligence of appellant, he was struck by one of the poles near the track and injured.

The second paragraph, omitting the averment as to speed of car, contains additional averments that appellant had negligently constructed its tracks, in that no provision was made by which cars backing on Hill avenue, in case of accident or otherwise, could enter the east track on Columbia avenue with the running-board away from the poles; that the car was constructed with seats running crosswise, and with a running-board by the side of and along the entire length of the car for the use and convenience of passengers entering the same; that the conductor saw appellee as he stepped on the running-board and started towards him, but negligently failed to warn him of his danger; that cars on Hill avenue are ordinarily run past Columbia avenue tracks down to the city; that when appellee stepped on the running-board he could not, because of darkness, see the poles or the danger of collision with them.

The discussion of the questions reserved, as stated in appellant's brief, covers practically the same ground, so far as the legal effect of each of the assigned errors is concerned. The discussion is directed to the questions of appellant's negligence, and appellee's freedom from fault.

The special answers show that appellee, at 7:30 p. m., August 2nd, became a passenger and was furnished a safe seat on an open or summer car with a running-board the entire length on the right side, and on the left side a screen to prevent passengers from getting in or out; that the car was on Hill avenue running backward, which appellee knew; the track on Hill avenue connected with a double track at Hill, Home, and Columbia avenues, so cars could pass on the west track of Columbia avenue and thence on the north track of Home avenue to the city; that the car backed on the west track of Columbia avenue, which threw the running-board next to the poles, and proceeded northward to be turned and run to the city with the running-board away from the poles; that the car had gone about 150 feet, at a speed of not less than four miles an hour, when appellee left his seat and got out on the running-board, and after walking three or four feet toward the rear end of the car was struck by one of the poles between the tracks; that before getting out on the running-board appellee did not look to see if there was any danger in doing so, did not signal the conductor or motorman, but got out of his own volition; that the conductor had no knowledge that appellee would leave his seat and get out on the running-board, and that the car, with the exercise of ordinary care, could not have been stopped after he got on the board and before he was struck; after passing on the west track the conductor did not notify the passengers to look out for the poles; that the conductor after he saw appellee upon the running-board could not have warned him of danger from the poles in time to prevent the injury; that the running-board was used by passengers in passing to the rear of the car; that the outer edge of the board was within a few inches of the poles; that there was no switch at the intersection of the north track on Hill avenue and the east track on Columbia avenue; that appellee knew that cars backing down Hill avenue in case of accident could not enter on the east track of Columbia avenue; that appellee did not know the car had entered on the west track on Columbia avenue; that he was sitting with his back toward the poles, and did not know the running-board was next to the poles; that it was growing dark, and appellee did not see the poles; that before stepping on the running-board appellee arose to his feet and looked at the conductor, who saw appellee; that he did not see the poles when he rose to his feet or stepped on the board; that no warning of any kind was given by the conductor or by any person to the appellee; that at the time objects outside the car could not be distinctly seen; that under all the circumstances appellee exercised such care as would be exercised by an ordinarily prudent person under like circumstances.

The complaint charges negligence on appellant's part, in that the car, under the particular circumstances enumerated, was run on the west track on Columbia avenue, with the running-board next to the poles, instead of the east track, and that appellant failed to warn the passengers of danger from the poles while the car was so running; that, after appellee left his seat and got on the board, appellant's conductor, who saw him, failed to warn him of the danger, or stop the car; and the negligent construction of the track, and switch at the intersection of the tracks, and the location of the poles between the tracks. As there was no evidence to support this last charge, it need not be further noticed.

It is a well settled rule that a carrier of passengers is held to the highest degree of care and diligence for the safety of passengers, consistent with the mode of conveyance employed. This rule has been differently stated by different courts, and in this State it is held that in cases of this character the omission to exercise the highest degree of practicable care constitutes negligence, while in other cases the failure to exercise ordinary care constitutes negligence. Louisville, etc., R. Co. v. Snyder, 117 Ind. 435, 10 Am. St. 60, 3 L. R. A. 434, 20 N.E. 284; Anderson v. Scholey, 114 Ind. 553, 17 N.E. 125; Citizens St. R. Co. v. Twiname, 111 Ind. 587, 13 N.E. 55; Terre Haute, etc., R. Co. v. Buck, 96 Ind. 346, 49 Am. Rep. 168, and cases cited. Jeffersonville, etc., R. Co. v. Hendricks', 26 Ind. 228.

And the duties imposed by...