Indiana Union Traction Company v. Thomas

Decision Date18 May 1909
Docket Number6,468
Citation88 N.E. 356,44 Ind.App. 468
PartiesINDIANA UNION TRACTION COMPANY v. THOMAS
CourtIndiana Appellate Court

Rehearing denied October 28, 1909.

From Delaware Circuit Court; Joseph G. Leffler, Judge.

Action by Mary Thomas against the Indiana Union Traction Company. From a judgment for plaintiff on a verdict for $ 500 defendant appeals.

Affirmed.

J. A Van Osdol, W. A. Kittinger and Rollin Warner, for appellant.

George H. Koons, Isaac H. Gray and Frank Ellis, for appellee.

OPINION

MYERS, J.

The appellee recovered judgment against the appellant for personal injuries sustained by her in alighting from a car operated by appellant. Appellant's motion for a new trial was overruled, and this action of the court is the only error assigned.

Our attention is first directed to objections urged to certain instructions given to the jury, and to the action of the court in refusing to give certain instructions asked for by appellant.

The familiar rule upon appeal, that the instructions of the trial court are to be considered as a whole for the purpose of ascertaining the impression given by the court to the jury, is applicable to the arguments of counsel on the instructions in this case.

In its second instruction the court stated that the gist of the action was that the appellee was injured by the appellant's negligently starting or jerking the car in which she was a passenger while she was alighting from it; and that to entitle her to recover "she must establish by a preponderance of the evidence: (1) That she was injured; (2) that such injury was the direct and proximate result of the careless starting or jerking of such car while she was alighting therefrom, or attempting to alight therefrom. It is the duty of the jury to determine whether the defendant was guilty of negligence in the alleged starting or jerking of the car, while the plaintiff was in the act of getting off, and whether the injuries complained of were caused thereby; and in settling these things they may consider, with all other circumstances of the case in evidence, whether the car was fully stopped, and, if stopped, whether a sufficient length of time for the plaintiff to alight safely, her age, sex and physical strength being considered. It was the duty of the defendant to stop the car for such length of time, and to provide such facilities, as would enable the plaintiff to alight safely, and it should be held to a strict compliance with such duty."

It is contended that this instruction told the jury, in effect, that the appellant was an insurer of the safety of the appellee. Aside from the statements in the instruction as to the proof of negligence on the part of the appellant necessary to a recovery, the jury was fully and correctly charged in other instructions upon the subject of contributory negligence of the appellee. Also, that a pure accident, where there was an entire absence of negligence, would not supply a cause of action. Also, that if the appellee was thrown to the street and injured by some accident, or in some way or manner that had not been fully explained, or which had been explained or was unexplainable, and not from any negligence, as charged against the appellant, the appellee could not recover. And in one of the instructions the jury was told: "The defendant in this case was not the insurer of the plaintiff's safety while she was riding as a passenger upon one of its cars, or while attempting to alight therefrom, if she did attempt so to do."

The statute (§ 558 Burns 1908, cl. 5, § 533 R. S. 1881) contemplates that the different branches of a case shall be presented to the jury separately, in numbered instructions, and in such orderly presentation that the language of one instruction will, of course, be taken by the jury, as intended by the court, to be subject to, and harmonious with, what is said in other instructions given at the same time. This court will not be disposed to regard instructions as having presented conflicting statements when they may be harmonized and treated as consistent with each other under any reasonable construction.

Instruction four contains as a part of it the statement, "that a street-car company is a common carrier, and is bound to use the highest degree of care for the safety of passengers, from the time they enter the car until they leave it, and is liable for an injury to a passenger by a failure to exercise such care, provided that such passenger is not guilty of any fault or negligence on his part which materially contributes to the injury." This instruction is criticised by counsel as ignoring the rule alleged to be that the high degree of care required of the carrier for the safety of its passengers must be consistent with the mode of conveyance employed, or must be the highest practicable degree of care. The instruction in question is substantially a copy of an instruction, held not to be erroneous, in Conner v. Citizens St. R. Co. (1896), 146 Ind. 430. In that case, the instruction was objected to by the plaintiff on the ground that it did not go further and tell the jury that the care required of the passenger in order to exonerate him from contributory negligence was not the same high degree required of the carrier, but that the law only required of the passenger ordinary care. It was said by the court, that the instruction was not erroneous as given, and would not have been erroneous with the addition claimed.

This court, in the case of Anderson v. Citizens' St. R. Co. (1895), 12 Ind.App. 194, 197, 38 N.E. 1109, quotes from the case of North Chicago St. R. Co. v. Cook (1893), 145 Ill. 551, 33 N.E. 958, the following: "'Carriers of passengers are held to the exercise of the utmost or highest degree of care, skill and diligence for the safety of the passenger that is consistent with the mode of conveyance employed. The car or train was in the control of the conductor and he was required to know, if by the exercise of due care, caution and diligence in the discharge of his duties he could know, whether any person was attempting to get on or off his train or car, before permitting the same to start in such manner as would be liable or likely to injure a person so getting on or off the same.'"

In the case of Louisville, etc., R. Co. v. Lucas (1889), 119 Ind. 583, 590, 6 L. R. A. 193, 21 N.E. 968, the court, having under consideration a like question against a steam railroad company, said: "A railroad company may not be bound to foresee and provide against accidents that no one could by the highest degree of practicable care anticipate, but it is bound to use the highest degree of practicable care to provide against accidents to passengers that may be foreseen...

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