Cleveland, C., C. & St. L. Ry. Co. v. Hadley

• Decision Date: 19 March 1908
• Docket Number: No. 21,142.,21,142.
• Citation: 170 Ind. 204,84 N.E. 13
• Court: Indiana Supreme Court
• Parties: CLEVELAND, C., C. & ST. L. RY. CO. v. HADLEY.

170 Ind. 204

84 N.E. 13

CLEVELAND, C., C. & ST. L. RY. CO.

v.HADLEY.

No. 21,142.

Supreme Court of Indiana.

March 19, 1908.

On petition for rehearing. Petition overruled.

For former opinion, see 82 N. E. 1025.

MONTGOMERY, J.

Appellant's counsel have filed an earnest petition for a rehearing in this case, and in support thereof have vigorously reargued many of the questions originally presented. It is very properly conceded that the decision announced and the merits of the case center around the eighth instruction given by the trial court, which explained the application of the doctrine res ipsa loquitur to appellee's view of the facts established. That part of the instruction now under consideration reads as follows: “Where a passenger, while on the company's train, received an injury on account of the derailment of the train, the breaking down of the roadbed, or on account of the weak, broken, or defective condition of the car provided by the company, or on account of the weak, broken, or defective condition of any part of such car, or any of the equipments or other appliances connected therewith, owned, or controlled by such company, and used by it in the operation of its road, the mere happening of such accident and injury of the passenger is, at least, prima facie evidence of the negligence of the company, and it will be incumbent upon the company to produce evidence which will excuse the prima facie failure of duty on its part.” It will be observed that by this instruction the court did not advise the jury that the mere happening of an accident to a passenger upon a railway train created a presumption of negligence on the part of the carrier; but the statement, in substance, is that, if a passenger receives an injury on account of the weak, broken, and defective condition of any appliance connected with a car owned, controlled, and used by the carrier, and in which such passenger is being transported, the happening of the accident is prima facie evidence of the negligence of the company. The maintenance of the window latch, to which appellee's injury was attributed, was undeniably within the exclusive control and supervision of appellant. If it was in fact weak, broken, or defective as alleged, and for that reason the window fell and inflicted the injury for which this suit was brought, as stated in the instruction, then there can be no serious dispute that a prima facie case of negligence was established. The instruction was therefore not erroneous in form and substance. The instruction was applicable to appellee's theory of the case and view of the evidence. The evidence of appellee with respect to hoisting the window was in part as follows: “Q. How high did you push the window? A. As high as it would go. Q. How do you know? A. Because I know I did. I was watching the window, and saw it catch. Q. Tell the jury how high you raised it. A. I raised the window as high as I could, until it caught. Q. Did you raise it the full length of the window? A. I did. Q. Until the lower part of the window was level with the lower part of the upper sash? A. Yes, sir. Q. You observed that, did you? A. Yes, sir. Q. Did you hear any clicking noise? A. I felt it catch. Q. When you raised the sash up, do you tell the jury that you were looking at the catch? A. I was. Q. Looking at it all the time you were raising it? A. Yes, sir. Q. Are you able to tell whether it caught or not? A. I am. Q. How can you determine that, when you don't know anything about the catch? A. I felt it catch, and saw it catch.” Chester C. Hadley, who was sitting in the seat immediately behind appellee at the time, testified that she raised the window until it gave a sound like a latch clicking, and that he remembered distinctly of the latch clicking just before he started to hand appellee the fruit parings. These statements were not directly disputed or denied. If they were true, the inevitable inference followed that the window catch must have been weak, broken, or defective, as claimed. Appellant made no showing that the car or its appliances had ever been inspected from the time of construction until after this accident, but rested its defense primarily upon the assumption that the catch was sound, strong, and suitable for its intended use. The catch was tested after the accident by the conductor and others, and there was evidence that upon the...