Evansville City Coach Lines v. Roger

• Decision Date: 19 June 1951
• Docket Number: No. 18073,18073
• Citation: 99 N.E.2d 435,122 Ind.App. 119
• Parties: EVANSVILLE CITY COACH LINES, Inc. v. ROGER.
• Court: Indiana Appellate Court

Page 435

99 N.E.2d 435

122 Ind.App. 119

EVANSVILLE CITY COACH LINES, Inc. v.ROGER.

No. 18073.

Appellate Court of Indiana, in Banc.

June 19, 1951.

Ortmeyer, Bamberger, Ortmeyer & Foreman, Evansville, Leonard Ashley, Boonville, for appellant.

John H. Jennings, Evansville, for appellee.

BOWEN, Judge.

This is an appeal from a judgment in an action for personal injuries allegedly caused by the negligence of appellant's bus driver.

The amended complaint alleged that appellee was injured as a result of being thrown forward against a seat to which appellee was holding while riding as a passenger on a bus owned and operated by the appellant; that the driver in charge of such bus, who was in the employ of the appellant, suddenly and without warning, carelessly and negligently applied the brakes on said bus with such force that it stopped the bus immediately, and threw the appellee forward, and that as a result thereof, appellee suffered serious personal injuries.

Issues were joined on appellee's amended complaint in one paragraph and appellant's answer denying the charges of negligence contained in the facts alleged in the amended complaint.

The cause was tried by a jury.The jury returned a verdict in the sum of $3,000 upon which judgment was rendered.

The sole error assigned for reversal is that the trial court erred in overruling appellant's motion for a new trial.

CausesNos. 1, 2, and 7 of the appellant's motion for a new trial are based upon the alleged error that the lower court erred in failing to instruct the jury to find for the defendant.The appellant contends there is no evidence of anything unusual in the operation of the bus, nor that there was evidence showing negligent conduct on the part of appellant in the operation and stopping of such bus at the time in question.

A common carrier, such as the appellant herein, is not liable to a passenger for personal injuries sustained from the sudden stopping of such carrier in which such passenger is riding, where sudden stopping is not unusual, and beyond common experience, and where such sudden stopping is necessarily incident to the ordinary operation of such carrier.Elliott on Railroads, 3rd Ed., Vol. 5, p. 56, § 2402;Louisville & R. Co. v. Hale, 1898, 44 S.W. 213, 19 Ky.L.Rep. 1651, 42 L.R.A. 293;Houston & T. C. R. Co. v. Harris, Tex.Civ.App., 1909, 120 S.W. 500;Cuddyer v. Boston Elevated R. Co., 1943, 314 Mass. 680, 51 N.E.2d 244;DeGiso v. Metropolitan Transit Authority, 1950, 325 Mass. 760, 90 N.E.2d 346;Bray v. Boston Elevated Ry. Co., 1939, 303 Mass. 379, 21 N.E.2d 957;Maher v. Boston & A. R. Co., 1939, 304 Mass. 641, 24 N.E.2d 513.

However, whether a certain sudden stopping, jerking, or jolting is unusual and beyond common experience and can be classified as violent or extraordinary is generally a question of fact to be determined by the jury.Evansville & T. H. R. Co. v. Mills, 1906, 37 Ind.App. 598, 77 N.E. 608;Wilcoxen v. City of Seattle, 1949, 32 Wash.2d 734, 203 P.2d 658;Lazarus v. Friel, 1947, 331 Ill.App. 552, 73 N.E.2d 647;Cohn v. Public Service Co-ordinated Transport, 1932, 109 N.J.L. 387, 162 A. 641;Roy v. United Electric Rys. Co., 1933, 53 R.I. 122, 164 A. 513;Hanley v. Milwaukee Electric Ry. & L. Co., 1935, 220 Wis. 288, 263 N.W. 638;Lawson v. Loftin, 1945, 155 Fla. 685, 21 So.2d 202;Paul v. St. Louis Public Service Co., Mo.App., 1932, 46 S.W.2d 910;Dallas Ry. & Terminal Co. v. Travis, Tex.Civ.App., 1932, 46 S.W.2d 743;Trudell v. New York Rapid Transit Corp., 1939, 281 N.Y. 82, 22 N.E.2d 244.

The complaint herein charged a sudden stopping without warning, and a careless and negligent application of the brakes by the bus driver with such force that it stopped immediately and threw the appellee forward, breaking her arm and bruising and mashing her left side and neck, after which sudden stop the defendant's driver drove the bus slowly to the regular stopping place.

The evidence shows that as appellee approached her destination as she was riding on appellant's bus, she rang the bell on the bus for a stop and proceeded to the rear door.When she got there, she took hold of the metal railing and was holding to the same and had been standing and holding the same when the bus, which the evidence showed had been travelling at a fast rate of speed, suddenly stopped under circumstances which show an unusual, abrupt, and violent stop, to the extent that it twisted appellee around and threw her over a seat, and that as a result thereof, her arm was broken, and another passenger who was standing on the bus was injured.

Other evidence which is corroborative and explanatory of the circumstances and conditions surrounding the alleged negligent stopping of such bus was contained in the testimony of an eye-witness to such accident.This witness testified that the bus made a stop very suddenly and sharply; that a car entered the intersection as the bus approached such intersection, and that the car had the green light, and such car and the bus were close together in such intersection at the time the bus stopped sudenly.In view of the fact that the bus made a sharp and sudden stop in the intersection and that the regular stopping place for such bus was on the other side of the intersection, when considered in the light of all the circumstances shown and related herein, it seems apparent that the evidence was fufficient to present a question of fact to the jury as to whether such bus was being operated in such a manner at the time in question as to constitute an unusual, violent, abrupt, and negligent stopping of such bus.Baltimore & O. S. W. R. Co. v. Harbin, 1903, 160 Ind. 441, 67 N.E. 109.

Assigned ErrorNo. 3 in the motion for a new trial is that the damages assessed by the jury are excessive.Such question is not properly before this court for the reason that the appellant has omitted to set forth in the original brief the testimony of Dr. E. L. Fitzimmons, the doctor who treated the appellee for her injuries.This court cannot fairly pass upon the question of whether or not the damages are excessive without a consideration of the testimony of such attending physician.Appellant, in its reply brief, has attempted to set out the evidence of Dr. Fitzimmons.Such omission may not be supplied by a reply brief.Holtz v. Elgin, Joliet & Eastern Ry. Co., Ind.App.1951, 98 N.E.2d 245;Lyons v. Souder, 1914, 56 Ind.App. 443, 105 N.E. 511;Modern Woodmen of America v. Ball, 1921, 77 Ind.App. 388, 131 N.E. 539;Smith v. Gowan-Stobo's Estate, 1942, 112 Ind.App. 11, 41 N.E.2d 630;Waters v. Delagrange, 1915, 183 Ind. 497, 109 N.E. 758;Interstate Public Service Co. v. Moore, 1928, 88 Ind.App. 439, 161 N.E. 633.Appellant, on proper showing, could have amended his original brief and the appellee would have had an opportunity to answer such new matter.Appellee inserted such new matter in the reply brief, and, therefore, under the rules by reason of the failure to set out such evidence, no question is properly presented to this court for review under such assigned error.

Additional assignments of error are based upon alleged misconduct of appellee and her counsel.The first instance of such alleged misconduct related to appellee's answer to a question regarding conversations had between appellee and representatives of the appellant in which appellee stated, 'The last time he came out there he said if I accepted $100.00.'The appellant made a motion to strike out such answer and the court overruled the motion of appellant to discharge the jury, and instructed the jury to disregard that part of the...