Citizens' Street Railroad Company v. Spahr

Decision Date28 February 1893
Docket Number729
Citation33 N.E. 446,7 Ind.App. 23
CourtIndiana Appellate Court

Petition for rehearing overruled June 20, 1893.

From the Marion Superior Court.

Judgment affirmed.

H. C Allen, for appellant.

W. P Fishback, W. P. Kappes and H. Dailey, for appellee.



The complaint, so far as it is material to be stated, alleges, in substance, that appellant was owning and operating an electric street car line over the streets of Indianapolis; that it so conducted its said business as to require those using its cars to get on and off while the cars were in motion; that, on the 3d day of November, 1891, while appellee was waiting to take a car at a street crossing, which was a usual and proper place to enter its cars, a motor car, with trailer attached, in charge of appellant's servants, approached the crossing, and, as it approached, the appellee "notified those in charge thereof that he desired to get on said car, and ride down town;" that as the cars neared the crossing they slowed up, for the purpose, as appellee thought, and had a right to believe, of allowing plaintiff and others who were waiting, to get on the cars, and as the trailer came opposite to him, appellee started to get on the same, and would have got on very easily had it not been for defendant's conduct as hereinafter set forth; that to get on the car appellee took hold of the handle, and just then, and before he got on, or had time to get on the car, defendant negligently, suddenly, and with a violent, quick jerk greatly increased the speed of said cars without any notice or warning to him, and he was thereby jerked from his feet and thrown to the ground, and severely injured, without any fault or negligence on his part contributing thereto; that he was not notified he could not ride on said cars. Whereby he was damaged, etc.

The sufficiency of the pleading was not questioned until after verdict, and for that reason the same degree of strictness is not to be applied to it as would be required had it been tested by demurrer. Harris v. State, ex rel., 123 Ind. 272, 24 N.E. 241; Laverty v. State, ex rel., 109 Ind. 217, 9 N.E. 774; Elliott's App. Proced., section 473.

Its sufficiency is questioned here on the ground that it fails to show:

1st. Any invitation, express, or implied, from appellant to appellee to become a passenger.

2d. Knowledge by appellant's agents of appellee's intention to attempt to board the car.

3d. Facts from which appellant's servants might reasonably have known of this intention.

4th. Freedom from negligence on the part of appellee.

Except as to the motive power being electricity instead of horses, the facts as found in the case of Conner v. Citizens' Street Railway Co., 105 Ind. 62, 4 N.E. 441, are substantially similar to these in all essential features, and the objections of counsel are largely met by the language of the opinion in that case: "Being at the usual place where passengers were taken up, and having given notice to the person in charge of the car that he desired to be taken up, it was the plain duty of the driver, or person in charge, either to afford him reasonable opportunity to enter the car, or to notify the plaintiff, either by continuing the rapid pace, or in some other way, that he would not be taken. Instead of giving any sign that he would not be taken, the speed of the car was slackened, so that it was moving slowly when he attempted to get on. Having received a signal and slowed up in a manner to invite the plaintiff to get on, it was a clear act of negligence in the driver, or person in charge, not to observe the plaintiff, if he did not observe him, and, while he was getting on the car, in a manner in which the defendant usually received such passengers, to cause the car to be jerked' forward, as the jury found."

Appellant insists that the facts show that appellee was negligent, because the car was in motion when he boarded it, and it does not appear how slow it was going, nor, in so many words, that it was safe to make the attempt. Without discussing what might be the effect of the lack of such allegations in the absence of the general averment of want of negligence upon the part of appellee, it is sufficient to say that there is nothing in the facts alleged which would overthrow the express allegation of want of negligence.

"It has, however, long been the rule in this court, that unless the facts specifically stated clearly show that there was contributory negligence, the general averment will rescue the complaint from its assailant." Evansville, etc., R. R. Co. v. Crist, 116 Ind. 446, 19 N.E. 310; Cincinnati, etc., R. W. Co. v. Darling, 130 Ind. 376, 30 N.E. 416.

Counsel seeks to control the case in hand by the rules applicable to dealings with ordinary railway trains.

It was held, in the Conner case, supra, that the rules applicable to boarding steam railway trains do not apply in all their vigor to getting on street cars while in motion, and this position is abundantly supported by authority. Beach on Cont. Neg., sections 290 and 291; Patterson's Railway Acc. Law, p. 290; Booth on Street Railway Law, section 336.

It is urged that here a different rule governs, because the motive power is different, being electricity instead of horse power. No authority is cited to sustain the distinction, nor are we able to see any ground for any material difference in the rules of law to be applied, since the objects and general methods and purposes of the street railway remain the same, whatever be the motive power.

In Chicago City R. R. Co. v. Robinson (Ill.), 36 Am. and Eng. R. R. Cases, 66, the court, in considering a question of negligence in a footman's failing to look, held that the same rule (more liberal than in the case of railway trains) governed, whether the cars were horse cars or cable cars.

In Highland Ave., etc., R. R. Co. v. Burt, 92 Ala. 291, 9 So. 410, it is decided that the rules and conditions governing street cars run by a dummy engine are not those which govern ordinary railway trains.

In Corlin v. West-End Street R. W. Co., 27 N.E. 1000, this very question comes up as to electric cars, and the court said: "We see no reason for applying to it (the electric street car) a rule of law which is not applicable to horse cars."

The complaint, we think, is therefore good after verdict at least, and this is all we are called upon to determine.

Several causes of error are presented under the motion for a new trial.

Appellee's counsel were permitted to ask him if he "could have gotten on the car safely if its speed had not been increased?"

In order to meet this evidence, appellant offered to prove, by a conductor who saw the transaction, that it would not have been safe for a man to attempt to get on that car at the rate of speed it was going.

It is insisted that the first question was erroneously permitted, and that it was added error to refuse appellant the right to defend by similar evidence.

Whatever error there was in permitting the first question was cured by the court's instruction by which any such evidence was withdrawn from the jury, and they were instructed to disregard it, they being told that it was not for the witnesses but for the jury to determine what might be safely done under the circumstances. This seems to be sufficiently specific without naming the particular witness. Elliott's App. Proced., section 701; Taylor v. Wootan, by Next Friend, 1 Ind.App. 188.

We do not think that the jury could have mistaken the meaning of the court, although the instruction may be, in part, not accurately worded.

Complaint is made on account of the court's overruling an objection to a question asked of D. A. Haywood.

So far as the answer to this question was responsive to the question, it was favorable to the appellant, and if the remainder of the answer which was not responsive to the question was not satisfactory, there should have been a motion to strike it out.

There was no error in refusing to allow appellant to prove that it "was not the custom, and people were not in the habit of trying to get on cars at the rate of speed that car was going." To answer this question involved a comparison in the mind of the witness of the relative speed of cars on different...

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