Indiana Railways and Light Company v. Armstrong

• Citation: 138 N.E. 830,79 Ind.App. 486
• Decision Date: 03 April 1923
• Docket Number: 11,405
• Parties: INDIANA RAILWAYS AND LIGHT COMPANY v. ARMSTRONG
• Court: Court of Appeals of Indiana

138 N.E. 830

79 Ind.App. 486

INDIANA RAILWAYS AND LIGHT COMPANY v. ARMSTRONG

No. 11,405

Court of Appeals of Indiana

April 3, 1923

From Howard Circuit Court; William C. Overton, Judge.

Action by Carrie Armstrong against the Indiana Railways and Light Company. From a judgment for plaintiff, the defendant appeals.

Reversed.

Bell Kirkpartrick & McClure, for appellant.

Overson & Manning, for appellee.

OPINION

BATMAN, J.

This is an action by appellee against appellant to recover for personal injuries, alleged to have been sustained by her as a passenger on one of the latter's cars, while alighting therefrom. After joining issues, the cause was submitted to a jury for trial, resulting in a verdict and judgment in favor of appellee. Appellant filed a motion for a new trial, which was overruled, and this action of the court constitutes the only error assigned on appeal, which has not been waived by failing to state any proposition or point with reference thereto.

The only question presented for out determination relates to the action of the court in giving the following instruction "It is the duty of a street railway company, in carrying passengers for hire to use a reasonable degree of care for the safety of said passengers, while said passengers are on said car, and also continuous while said passengers are getting off the said car. And it is the duty of the persons in charge of said car to know and see that the door of said car is not closed when said passengers are in a dangerous place * * *." (Our italics.)

This instruction is clearly erroneous, as it is reasonably subject to the construction, that carriers of passengers for hire, in the exercise of reasonable care for their safety, are charged with the imperative duty of seeing and knowing, that the door of the car in which they are riding is not closed when they are in a dangerous place. This is not the law, and is so declared, in effect, in many decisions. Caughell v. Indianapolis Traction, etc., Co. (1912), 50 Ind.App. 5, 97 N.E. 1028; Henry v. Prendergast (1911), 51 Ind.App. 43, 94 N.E. 1015; Southern R. Co. v. Ellis (1913), 53 Ind.App. 34, 101 N.E. 105; Indiana Union Traction Co. v. Bales (1915), 58 Ind.App. 92, 107 N.E. 682; Terre Haute, etc., Traction Co. v. York (1916), 60 Ind.App. 399, 110 N.E. 999; Louisville, etc., Traction Co. v. Korbe (1910), 175 Ind. 450, 93 N.E. 5, 94 N.E. 768; Martin v. Lilly (1919), 188 Ind. 139, 121 N.E. 443; Frank Bird Transfer Co. v. Shaw (1919), 72 Ind.App. 658, 124 N.E. 776; American Coal, etc., Co. v. Lewis, Admr. (1922), 77 Ind.App. 394, 133 N.E. 846.

It will be observed that this instruction relates to a material issue in the case, viz.: whether appellant was guilty of the negligence charged. In such cases it will be presumed that the erroneous instruction was harmful, and such presumption will prevail, unless it affirmatively appears from the record, that it was not prejudicial to the complaining party. Cleveland, etc., R. Co. v. Case (1910), 174 Ind. 369, 91 N.E. 238; Evansville, etc., R. Co. v. Hoffman (1914), 56 Ind.App. 530, 105 N.E. 788; Louisville, etc., Traction Co. v. Korbe, supra. And the burden is upon the party, seeking to avoid such presumption, to show by the record, that the error was not prejudicial. Evansville, etc., R. Co. v. Hoffman, supra; Cleveland, etc., R. Co. v. Case, supra; Louisville, etc., Traction Co. v. Korbe, supra; National Motor, etc., Co. v. Pake (1915), 60 Ind.App. 366, 109 N.E. 787.

Appellee, in an effort to avoid a reversal of the judgment, because of any error in said instruction, cites the cases of Anderson v. The Citizens', etc., R. Co. (1894), 12 Ind.App. 194, 38 N.E. 1109, and Crump v. Davis (1904), 33 Ind.App. 88, 70 N.E. 886, but those cases have been superseded by the decision of the Supreme Court in the case of Louisville, etc., Traction Co. v. Korbe, supra, as stated by this court in the case of Caughell v. Indianapolis Traction, etc., Co., supra.

Appellee also relies upon the settled rule, that it is not necessary to state all the law applicable to a case in one instruction but that it suffices if the instructions, taken as a whole, correctly state the law involved. This rule, however, has no application where the law, as stated in an erroneous instruction, is merely contradicted by a correct statement of the law in other instructions, which is the most that can be said in appellee's favor in the instant case. Where such contradiction exists, the harmful effect of the erroneous instruction can only be avoided by its withdrawal, Evansville, etc., R. Co. v. Hoffman, supra; Cleveland, etc., R. Co. v. Snow (1905), 37 Ind.App. 646, 74 N.E. 908; Lake Shore, etc., R. Co. v. Johnson (1909), 172 Ind....