Conner v. The Citizens Street Railway Co.

• Decision Date: 26 January 1886
• Docket Number: 11,982
• Parties: Conner v. The Citizens Street Railway Company
• Court: Indiana Supreme Court

4 N.E. 441

105 Ind. 62

Conner v. The Citizens Street Railway Company

No. 11,982

Supreme Court of Indiana

January 26, 1886

Petition for a Rehearing Overruled April 14, 1886.

From the Marion Superior Court.

The judgment is reversed, with costs.

L Ritter, E. F. Ritter and B. W. Ritter, for appellant.

F Winter, W. W. Herod and H. C. Allen, for appellee.

OPINION

Mitchell, J.

This was a suit brought by John B. Conner against the Street Railway Company to recover damages for personal injuries sustained by him on account of alleged negligence on the part of the railway company.

The appellant had judgment upon a special verdict at special term. This was reversed on appeal to the general term, and the record is now here with an assignment that the general term erred in reversing the judgment of the special term.

The questions for decision arise on the special verdict returned by the jury.

Summarized, the material facts returned were: That the railway company, on the 7th day of May, 1883, owned and operated a street railway, for the carriage of passengers over certain streets in the city of Indianapolis. That on the day mentioned three of the defendant's cars, by reason of a mule attached to one of them having balked, had become "bunched," or collected together, at a point on its line, so that they had lost their proper time or interval. An officer of the company, who was upon the front car, directed that it, and the car succeeding it, should be driven rapidly, without stopping to receive passengers, so as to regain their proper distance from each other, and that the third, or rear car, should receive such passengers as should present themselves. Pursuant to direction, the three cars started down College avenue. Two of them were driven in a fast trot. The first car passed the point where the plaintiff was standing without slackening its speed. When the second, as we infer from the finding, approached the footway at the crossing where the plaintiff was standing, that being the usual place for receiving passengers, the plaintiff, as the finding recites, "gave notice to the agent, an employee in charge of said car, that he desired to take passage therein as a passenger." That the car was one of the regular vehicles for the carriage of passengers, and that there was room in the car, so that he could have been carried without inconvenience to himself, the defendant, or to other passengers therein. It is then found that the plaintiff was not "instructed by an officer or agent of the defendant to get upon said car." That as the car came up to where plaintiff stood its speed was slackened from a rapid trot to a walk, and when the rear step came about over the walk it was moving slowly. That it was the defendant's custom to slacken the speed of its cars to let men passengers on or off while in motion, as the plaintiff well knew. That the plaintiff attempted to enter the car by the rear door, and stepped one foot on the step, and partially took hold of the iron railing with one hand, when the driver struck the mules with his whip, suddenly increasing the speed of the car, which caused plaintiff to be violently thrown on the ground, from which he sustained severe injuries and bruises. The conclusion of the finding of what purports to be the facts is as follows:

"12th. That the conduct of plaintiff on the occasion of the injury was ordinarily prudent and cautious under the circumstances, and that he did not wholly contribute to said injury by any fault or negligence on his part, but that said injury was caused mostly by the agent of the defendant, driver of said car."

In determining the legal value and quality of the facts found, the paragraph above set out is not to be regarded as a finding of facts. It contains nothing more than inferences or conclusions, drawn by the jury upon the precedent facts, and upon these it was not the province of the jury, in their special verdict, either to express opinions or draw conclusions. In framing and returning a special verdict, the whole duty of the jury is discharged when they have found and set forth, in an orderly and intelligible manner, all the principal facts which were proven within the issues submitted to them. Pittsburgh, etc., R.R.Co. v. Spencer, 98 Ind. 186; Indianapolis, etc., R. W. Co. v. Bush, 101 Ind. 582.

"A special verdict is that by which the jury find the facts only, leaving judgment thereon to the court." Section 545, R. S. 1881.

When, upon an issue involving negligence, the principal or ultimate facts are determined by the jury, it then becomes the function of the court to decide, as a question of law upon the facts found, whether or not the party to whom negligence is imputed was negligent.

A civil case can not be conceived of in which it is the province of the jury by special verdict to determine the facts, and also to draw inferences in the nature of...