Cleveland, Cincinnati, Chicago & St. Louis Railway Company v. Hadley

• Citation: 82 N.E. 1025,170 Ind. 204
• Decision Date: 20 December 1907
• Docket Number: 21,142
• Court: Indiana Supreme Court
• Parties: Cleveland, Cincinnati, Chicago & St. Louis Railway Company v. Hadley, by Next Friend

82 N.E. 1025

170 Ind. 204

Cleveland, Cincinnati, Chicago & St. Louis Railway Company v. Hadley, by Next Friend

No. 21,142

Supreme Court of Indiana

December 20, 1907

Rehearing Denied March 19, 1908, Reported at: 170 Ind. 204 at 217.

From Putnam Circuit Court; Presley O. Colliver, Judge.

Action by Vivian Hadley, by her next friend, against the Cleveland Cincinnati, Chicago & St. Louis Railway Company. From a judgment for plaintiff, defendant appeals. Transferred from Appellate Court under § 1399 Burns 1908, Acts 1901, p 565, § 15.

Affirmed.

James L. Clark, Tarvin C. Grooms, George A. Knight, L. J. Hackney and Frank L. Littleton, for appellant.

T. S. Adams and S. A. Hays, for appellee.

Montgomery, J. Hadley, J., did not participate in this decision.

OPINION

Montgomery, J.--

Appellee, suing by next friend, recovered judgment for a personal injury caused while a passenger on appellant's train, by the falling of a window-sash upon her arm.

The only error assigned is the overruling of appellant's motion for a new trial.

The motion for a new trial alleged that the verdict was not sustained by sufficient evidence and was contrary to law; that the damages were excessive; that the court erred in refusing to give, and in giving, certain instructions. Other specified errors of law occurring upon the trial will be set out and considered in this opinion.

The first sentence of the eighth instruction tendered by appellant and refused was as follows: "A common carrier of passengers must exercise the highest degree of care in providing safe appliances and cars for the transportation of its passengers; and passengers upon the cars or carriages of a common carrier must also exercise an equally high degree of care to protect themselves from injury." The latter clause of this statement was manifestly incorrect, since a passenger is required to exercise only ordinary care for his safety. 4 Elliott, Railroads (2d ed.), § 1642; Jeffersonville, etc., R. Co. v. Hendricks (1866), 26 Ind. 228; Keokuk, etc., Packet Co. v. True (1878), 88 Ill. 608; Waterbury v. Chicago, etc., R. Co. (1897), 104 Iowa 32, 73 N.W. 341; Missouri, etc., R. Co. v. Miller (1894), 8 Tex. Civ. App. 241, 27 S.W. 905; Conroy v. Chicago, etc., R. Co. (1897), 96 Wis. 243, 70 N.W. 486, 38 L.R.A. 419.

Appellant, by its ninth instruction, requested the court to charge the jury that if appellee, while on a rapidly-moving car, raised the window, protruded her arm, and, while in the act of withdrawing the same the window fell, inflicting the injury complained of, she was guilty of contributory negligence and could not recover. The question of contributory negligence is usually to be determined by the jury, and it is only in a case where the facts are undisputed, and but one reasonable inference can be drawn therefrom, that the court may venture to direct a verdict. It is very clear upon the facts assumed in this instruction that the court was not warranted in saying, as a matter of law, that appellee was guilty of contributory negligence. Schneider v. New Orleans, etc., R. Co. (1893), 54 F. 466; New Orleans, etc., R. Co. v. Schneider (1893), 60 F. 210, 8 C.C.A. 571; Farlow v. Kelly (1882), 108 U.S. 288, 2 S.Ct. 555, 27 L.Ed. 726; Moakler v. Willamette, etc., R. Co. (1889), 18 Ore. 189, 22 P. 948, 6 L.R.A. 656, 17 Am. St. 717; Summers v. Crescent City R. Co. (1882), 34 La. Ann. 139, 44 Am. Rep. 419; Miller v. St. Louis R. Co. (1878), 5 Mo.App. 471.

The third instruction, given at the request of appellee, advised the jury that if appellee was a passenger on appellant's car, and, for the purpose of throwing out fruit parings, or for other reasonable cause, raised the window until the same was locked or caught, and such window, on account of the broken, weak or defective lock or catch thereon, fell and injured appellee's arm, without fault or negligence on her part, appellant would be liable. The objection is that this instruction binds appellant for breaks of the most recent occurrence, as well as latent defects. The instruction was not given as an abstract proposition of law, but as an application of a legal principle to the concrete case before the court. Appellant did not found its defense upon the ground of this objection, or offer any evidence of an inspection of the car or its appliances previous to the accident, but insisted upon the trial that the window catch was suitable and proper, and in good condition. If the window catch was in fact broken, weak or defective, and for that reason the window fell, then, under the evidence, appellant had made no effort to discover or repair such defect; and a prima facie case was established entitling appellee to recover. Breen v. New York, etc., R. Co. (1888), 109 N.Y. 297, 16 N.E. 60, 4 Am. St. 450; Holbrook v. Utica, etc., R. Co. (1855), 12 N.Y. 236; Winters v. Hannibal, etc., R. Co. (1867), 39 Mo. 468. The fourth instruction given, of which complaint is made, is in principle the same as the third, and no error was committed in giving the same.

The eighth instruction, given at the request of appellee, declared the law to be that if an injury is suffered by a passenger on account of the weak, broken or defective condition of the car in which such passenger is riding, or any of the equipments and appliances connected therewith, the mere happening of such accident and injury is prima facie evidence of the negligence of the company owning, controlling and using such car, and it will be incumbent upon the company to produce evidence which will excuse the prima facie failure of duty on its part. This instruction literally embodies the language of this court in the case of Terre Haute, etc., R. Co. v. Sheeks (1900), 155 Ind. 74, 56 N.E. 434, and the legal principle declared is supported by numerous decisions of this State, and is in accord with the conclusions of all approved authorities. Appellant's learned counsel insist, however, that the doctrine res ipsa loquitur does not apply where there was any action on the part of the passenger which might have contributed to produce the injury. It must be conceded that a well-recognized exception, substantially as stated, exists to the general rule. In the case of Pennsylvania Co. v. Marion (1885), 104 Ind. 239, 3 N.E. 874, this court held that a passenger who voluntarily left his seat and alighted upon the station platform while the train was in motion, and in so doing sustained injury, was not in a position to claim the benefit of a presumption that the carrier was guilty of negligence. The Appellate Court, upon similar facts, has announced the same holding. Dresslar v. Citizens' St. R. Co. (1898), 19 Ind.App. 383, 47 N.E. 651; Pittsburgh, etc., R. Co. v. Aldridge (1901), 27 Ind.App. 498, 61 N.E. 741. A mere statement of the circumstances attending the accident clearly and broadly distinguishes those cases from the one at bar. In the cases cited the controversy was as to what was the negligent act proximately causing the injury; and no claim of defective cars, equipment or appliances was fairly or properly presented. While in this case the real dispute is, not whether appellee was guilty of contributory negligence, but whether the window catch was in fact weak, broken or defective. There could be no question of appellee's right to hoist the window, without any imputation of negligence, and the fact is shown without conflict in the evidence that she raised the sash with due care, to the full height, and until it was latched. It does not, therefore, appear from a mere recital of the incident, or upon the whole case, that the question of appellee's contributory negligence was so involved as to take this case out of the general rule that a passenger injured without his fault, by a defective appliance of the carrier's, has a prima facie right of recovery. Our conclusion is that the instruction was applicable to the case made out by the evidence, and was in form and substance proper.

This instruction states the general proposition that the happening of an injury to a passenger because of defective appliances creates a prima facie case of failure in the performance of duty on the part of the carrier as before shown, and concludes as follows: "Or, in other words, the company has the burden of proving, in order to rebut the presumption of negligence, under the circumstances, that the accident could not have been avoided by the exercise of the highest degree of practical care and diligence." Objection is made to the use of the word "burden" in this connection, and it is correctly argued that appellant, under the answer of general denial, did not at any stage of the trial have the burden of disproving the negligence charged by appellee in the complaint. It is clear upon principle that appellee, having alleged actionable negligence, must assume and bear throughout the proceeding the burden of establishing the charge preferred. In this action she made a prima facie case by the aid of the legal presumption arising from the doctrine res ipsa loquitur. In finally determining the issue as to appellant's negligence, the jury must weigh presumptions, testimony and proofs of every character in the light of the principle that the burden of proof was upon appellee, and if, on the whole, the scale did not preponderate in favor of the presumption and against all countervailing evidence, appellee must fail. Pittsburgh, etc., R. Co. v. Higgs (1906), 165 Ind. 694, 708, 4 L.R.A. 1081, 76 N.E. 299; Terre Haute, etc., R. Co. v. Sheeks, supra; Cleveland, etc., R. Co. v. Newell (1885), 104 Ind. 264, 274, 54 Am. Rep. 312, 3 N.E. 836; Kay v. Metropolitan St. R. Co. (1900), 163 N.Y. 447, 57 N.E. 751. Reading the instruction under consideration as an entirety, it is plain that the word burden was used in this...