Hall v. Terre Haute Elec. Co.

• Decision Date: 06 December 1905
• Docket Number: No. 5,396.,5,396.
• Citation: 76 N.E. 334,38 Ind.App. 43
• Parties: HALL v. TERRE HAUTE ELECTRIC CO.
• Court: Indiana Appellate Court

38 Ind.App. 43

76 N.E. 334

HALL

v.TERRE HAUTE ELECTRIC CO.

No. 5,396.^*

Appellate Court of Indiana, Division No. 2.

Dec. 6, 1905.

Appeal from Superior Court, Vigo County; O. B. Harris, Special Judge.

Action by William Hall against the Terre Haute Electric Company. From a judgment for defendant, plaintiff appeals. Reversed.Stimson & Condit and Catlin & Catlin, for appellant. McNutt & McNutt, for appellee.

ROBY, C. J.

In the single paragraph of complaint it is substantially charged that appellee owned and was operating an electric street railway in the city of Terre Haute and that appellant attempted to board one of its cars standing on said railway, at a regular stopping place upon one of the streets of said city, for the purpose of becoming a passenger thereon, and that while in the act of boarding said car for said purpose, appellee's servant negligently started the same, and thereby threw appellant off and broke his leg. The issue was formed by a general denial, cause submitted for trial to a jury, and, at the conclusion of the evidence, a peremptory instruction to find for the defendant was given. An exception was reserved, and the action of the court in giving such instruction presents the question for decision.

The injury complained of occurred in the city of Terre Haute, on November 10, 1900, at which time appellee owned and operated an electric railway system therein, the main line of which occupied Wabash avenue and South Third street; the direction of the former being east and west, and of the latter, north and south. The line on Wabash avenue was double tracked, on Third street there was a single track only, excepting that a switch extended 120 feet south of the avenue. Some cars turned south and continued on Third street, others were taken to the end of the switch and placed in position for the return trip over the avenue. For one fare, passengers were entitled to a continuous ride to any part of the system, being transferred from one line to another, when necessary. The regular stopping place for all cars bound south was just south of the south line of Wabash avenue. After rounding the curve at this point, all main line and south-bound cars, regularly stopped for the purpose of discharging and transferring passengers, but cars which ran no further south than the switch, stopped only for the purpose of discharging passengers. Appellant was a man 63 years old, and desired to go 14 squares south of the avenue. He carried a valise weighing 25 to 50 pounds. It was then 5 o'clock or later and turning dark. The day was wet and cloudy. When he was at the corner of said streets opposite to the regular stopping place, he observed a car one and one-half blocks distant coming west. He crossed to the southwest corner, and staid in the street near the track waiting for a south-bound car at the regular stopping place, as aforesaid. There were other vehicles in the street through which he had made his way in crossing. The car stopped as usual, but did not quite clear the curve. Appellant was within 10 feet of it when it stopped. The conductor stepped off, and assisted a lady to alight, and returned to the platform. Appellant followed him, putting his left foot upon the step, grasping the hand rail in his left hand, and carrying the valise in his right. He testified that the car was standing still. There is other evidence to the effect that it was in motion. The conductor stood in the rear door. Appellant said: “Is this car going to South Third?” The conductor said: “No, sir.” The car immediately started with a jerk and swinging motion, owing to the curved track, and appellant was thrown off, and his hip joint broken. The car ran on south to the switch and was then returned to Wabash avenue. The actual purpose of its stop was to discharge passengers. It was appellee's custom, when a passenger boarded its cars under such circumstances, to collect a fare and, if he returned, to charge a second fare. The conductor was not looking for passengers, saw appellant on the step, and “never noticed any more.” It was the custom to carry on the front and rear of cars movable signboards, showing the name of the place or streets to which they were bound; such cars being otherwise indistinguishable. There is evidence from which it may be fairly inferred that no such sign was on the front end of the car in question. In consideringa motion for a peremptory instruction, the court is bound to accept as true, all facts which the evidence tends to prove, and all such inferences as are reasonably deducible therefrom against the party asking a protection of the verdict and in case of conflict in the evidence, excluding that favorable to him. Curryer v. Oliver, 27 Ind. App. 424, 426, 60 N. E. 364, 61 N. E. 593. The question of contributory negligence was for the jury, and the peremptory instruction cannot be sustained by reference to facts bearing upon that issue, the affirmative of which was upon appellee. Chicago, I. & L. Ry. Co. v. Barnes (Ind. Sup.) 73 N. E. 91;Haughton v. Ætna Life Ins. Co. (Ind. Sup.) 73 N. E. 592;74 N. E. 613.

Appellee justifies the action of the court,...