Indiana Rys. & Light Co. v. Armstrong

• Citation: 138 N.E. 830,79 Ind.App. 486
• Decision Date: 03 April 1923
• Docket Number: No. 11405.,11405.
• Court: Court of Appeals of Indiana
• Parties: INDIANA RYS. & LIGHT CO. v. ARMSTRONG.

79 Ind.App. 486

138 N.E. 830

INDIANA RYS. & LIGHT CO.

v.ARMSTRONG.

No. 11405.

Appellate Court of Indiana, Division No. 1.

April 3, 1923.

Appeal from Circuit Court, Howard County; Wm. C. Overton, Judge.

Action by Carrie Armstrong against the Indiana Railways & Light Company. Judgment for plaintiff, and defendant appeals. Reversed, with instructions.

Bell, Kirkpatrick & McClure, of Kokomo, for appellant.

Overson & Manning, of Kokomo, for appellee.

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.

[1] The only question presented for our 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 T., etc., Co. (1911) 50 Ind. App. 5, 97 N. E. 1028;Henry v. Prendergast (1912) 51 Ind. App. 43, 94 N. E. 1015;Southern R. Co. v. Ellis (1912) 53 Ind. App. 34, 101 N. E. 105;Indiana, etc., T. Co. v. Bales (1915) 58 Ind. App. 92, 107 N. E. 682;Terre Haute, etc., T. Co. v. York (1915) 60 Ind. App. 399, 110 N. E. 999;Louisville, etc., T. Co. v. Korbe (1910) 175 Ind. 450, 93 N. E. 5, 94 N. E. 768;Martin v. Lilly (1918) 188 Ind. 139, 121 N. E. 443;Frank Bird, etc., Co. v. Shaw (1919) 72 Ind. App. 658, 124 N. E. 776;American, etc., Co. v. Lewis (Ind. App. 1922) 133 N. E. 846.

[2] 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., T. 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., T. Co. v. Korbe, supra; National, 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. Citizens,' etc., R. Co. (1894) 12 Ind. App. 194, 38 N. E. 1109, and Crump v. Davis (1903) 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., T. Co. v. Korbe, supra, as stated by this court in the case of Caughell v. Indianapolis T. Co., supra.

[3] 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 ...