Indiana Union Traction Co. v. Keiter
| Decision Date | 17 November 1910 |
| Docket Number | 21,488 |
| Citation | 92 N.E. 982,175 Ind. 268 |
| Parties | Indiana Union Traction Company v. Keiter |
| Court | Indiana Supreme Court |
Rehearing Denied February 23, 1911.
From Superior Court of Marion County (71,986); Pliny W Bartholomew, Judge.
Action by Harry T. Keiter against the Indiana Union Traction Company. From a judgment for plaintiff, defendant appeals.
Affirmed.
James A. VanOsdol, Kane & Kane, L. B. Ewbank and Joseph R Morgan, for appellant.
Harding & Hovey, George T. Pattison, Solon A. Enloe and O. U. Newman, for appellee.
Appellee instituted this action upon a complaint consisting of one paragraph, to recover damages for personal injuries sustained by him, while a passenger on appellant's traction railway, on account of certain alleged negligence on the part of appellant company. The answer was a general denial. There was a trial by jury, and a verdict in favor of appellee, awarding him $ 6,625 as damages. Appellant moved for a new trial, assigning various reasons in support of its motion. The motion was overruled and a judgment was rendered on the verdict. From this judgment appellant has appealed, and assigns as error the overruling of its motion for a new trial. The complaint alleges that defendant is a corporation duly organized under the laws of the State of Indiana; that on December 15, 1905, it controlled a certain line of interurban railway running into and between the cities of Logansport and Kokomo, in said State, and through intermediate points, including Galveston, Cass county, Indiana, and Jewel, Howard county, Indiana; that defendant's business was to carry freight and passengers for hire; that its power was applied through overhead wires and by what is known as the "trolley system;" that on said December 15 the plaintiff, at said town of Galveston, became a passenger on one of the defendant's cars, to be carried to the town of Jewel; that as said passenger he paid the ordinary fare charged by defendant for the regular passage between said stations of Galveston and Jewel; that while he was on said car he informed defendant, through its conductor in charge thereof, that he desired to get off at Jewel; that the usual custom of defendant since commencing to operate its railway had been to make a very short stop at said station, and that by said custom passengers were required to be in readiness to alight quickly from its cars at said station; that in compliance with said custom and requirement, plaintiff, having previously notified the conductor in charge of defendant's car that he desired to leave the car at said station, stepped out on the rear platform of the car as it approached said station; that it was then late in the night, and defendant, through its conductor in charge of the car, carelessly and negligently failed to signal the motorman who was operating the car to stop at said station, and defendant carelessly and negligently ran said car rapidly past said station at which plaintiff intended to alight; that while plaintiff was on the platform of the car, and after it had passed said station, the usual signal was given the motorman to stop the car, and that thereupon defendant, through its motorman, carelessly and negligently reversed the power applied to running said car, and carelessly and negligently applied the brakes attached thereto for stopping the car, and suddenly checked the speed of, and stopped said car, and by reason of said careless and negligent acts on the part of said defendant, through its said motorman and conductor, plaintiff was thrown from said car and precipitated against one of said defendant's trolley-poles standing near the track, whereby and by reason of which he was badly bruised and injured in this, to wit, his skull was fractured. Damages in the sum of $ 10,000 are demanded.
The reasons relied on by appellant for reversal of the judgment below, as advanced in its brief, are the following: (1) The evidence fails to show that any negligence of appellant was the proximate cause of appellee's injury. (2) The undisputed evidence discloses that appellant was guilty of contributory negligence. (3) The court erred in giving to the jury, on its own motion, instruction six. (4) The court erred in giving, on its own motion, instruction seven, defining the meaning of "proximate cause." (5) The court erred in refusing, over appellant's request, to give instruction two. (6) The court erred in giving, on its own motion, instruction three. (7) The court erred in giving to the jury, on its own motion, instruction nine. (8) The court erred in giving instruction one, as requested by appellee. (9) The court erred in giving instruction two, as requested by appellee.
The theory of the complaint and the theory upon which the case was tried below appears to be that the injury sustained by appellee was caused by the negligence of appellant's motorman in applying the brakes to the car in question, thereby suddenly checking its speed and suddenly stopping it after appellee had been carried beyond the station at Jewel, his place of destination. It will be noted, on examination of the complaint, that the negligence complained of is not imputed to the speed of the car, but to the sudden stopping thereof.
We find that there is evidence to establish the following facts Appellant is a common carrier of freight and passengers for hire over the traction railway which it operates and controls. Its railroad extends from the city of Logansport, Cass county, Indiana, to the city of Tipton, in said State, passing through the villages of Galveston, Cass county, and Jewel, Howard county, both of which are stations upon appellant's railway. On December 15, 1905, at about 12 o'clock at night, at said village of Galveston, appellee, together with Myron W. Gates, boarded one of appellant's cars which it ran over its railway. This car was in charge of a conductor and a motorman. Appellee and Gates went into the car and took seats near the front of the passenger compartment, and each of them paid to the conductor, when he came around to collect the fares, the sum of ten cents, which was the regular fare from Galveston to Jewel. Each notified the conductor that he desired to get off the car at Jewel. After taking his seat, it appears that Gates got up from where he was sitting by the side of appellee and went into the smoking compartment of the car. The distance between Galveston and Jewel is about five miles When about one-eighth of a mile from Jewel, Gates came from the "smoker" into the compartment in which appellee was sitting, tapped him on the shoulder and said: "We're pretty near there." Gates then went onto the rear platform of the car and was followed by appellee. When they reached the rear platform, the car was about four hundred feet from the Jewel crossing, and began to slow down when very near the crossing. Gates testified that he saw the car was going to pass the Jewel stop and he gave the stop signal--one tap of the bell. Appellee was coming through the door onto the rear platform when he gave this signal. The car began to slow down, and as it did so appellee stepped down one step from the platform, and took hold of the rods on each side of the car. He stood with his right foot on the first step down from the platform and his left foot was on such platform, his face was towards the vestibule, and he was preparing to alight from the car when it should stop at Jewel. He did not intend to get off the car until it should stop at said station. After appellee had taken this position in getting ready to alight from the car at the station, the speed of the car was very suddenly checked, and it "bounced and jerked," because the brakes were applied in such a sudden manner. After appellee had taken the position in question he did not have time to get back on the platform before the accident. In fact, there is evidence to show that the motorman applied the brakes in such a manner as caused the car to give sudden jerks and to bounce, and that by reason of its sudden jerking and bouncing appellee's hold on the rods was broken, and he was suddenly and violently thrown off the car against one of the trolley-poles, and thereby was very seriously injured, as alleged in the complaint. After he was thrown off the car it ran a distance equal to that which intervened between two or three trolley-poles before it came to a full stop. Appellee was thrown against the third trolley-pole standing beyond the crossing at Jewel. These trolley-poles are about one hundred feet apart. The conductor in charge was sitting in the car when Gates and appellee got up and went to the rear platform for the purpose of alighting when the car should stop at Jewel. They passed the conductor, but he said nothing to them, and gave no signal whatever to the motorman to stop the car at said station. The conductor had notice that appellee and his companion were going to the rear of the car for the purpose of alighting when it should stop at the station of Jewel. The car was a local one, and stopped at Jewel only on a signal from the conductor. There is evidence to show that the car, before it reached Jewel, was running at an ordinary rate of speed. In respect to its speed at this time, the evidence is conflicting. It was at the Jewel crossing where the car gave the first jerk, which, as the witness testified, appeared to be caused by a sudden application of the brakes. At the time appellee's hold on the rods was broken by the jerking and bouncing of the car, he was holding on tightly to said rods, and had no intention of jumping off said car. The only purpose he had in placing himself in the position he was in was to be in readiness to alight from the car when it should stop. When appellee went to the rear platform of...
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