Indiana Union Traction Company v. Jacobs
| Decision Date | 27 June 1906 |
| Docket Number | 20,873 |
| Citation | 78 N.E. 325,167 Ind. 85 |
| Parties | Indiana Union Traction Company v. Jacobs |
| Court | Indiana Supreme Court |
From Hamilton Circuit Court; Ira W. Christian, Judge.
Action by Charlotte Jacobs against the Indiana Union Traction Company. From a judgment on a verdict for plaintiff for $ 550, defendant appeals. Transferred from Appellate Court under § 1337u Burns 1901, Acts 1901, p. 590.
Affirmed.
Kittinger & Diven, James A. Van Osdol and Patrick J. Casey, for appellant.
Gavin & Davis and Gentry & Cloe, for appellee.
Suit by appellee against appellant for injuries received by her while attempting to alight from appellant's interurban car, in a public street in the town of Arcadia. Appellant was defeated below, and assigns as error the overruling of its demurrer to the complaint, and the overruling of its motion for a new trial.
The charges of negligence in said complaint are as follows: "That said defendant negligently and carelessly failed to provide a platform or other safe and convenient place and means of entering and leaving said car, at the point where said car was stopped by said defendant, for said plaintiff to alight from said car, and that said defendant negligently and carelessly failed to stop said car at the usual place provided by said defendant at said town of Arcadia for passengers to enter upon and leave said cars, and negligently and carelessly ran said car beyond said usual place for stopping the same, for receiving and discharging passengers, to a point where there was a distance, namely three or three and one-half feet from the lowest step on said car to the ground, and where said ground was uneven and unfit as a place for passengers to alight from said car; and negligently and carelessly informed said plaintiff at the point said car was stopped that she had arrived at her destination where she was to leave the car at said point, and said defendant negligently and carelessly failed to assist her in alighting from said car." It is alleged that it was dark at the time; that plaintiff supposed that the car was standing at the usual place for discharging passengers that she did not know that the distance was so great, and that she believed that she could safely alight.
In respect to the failure to provide a platform in the street, and running the car beyond the usual place, the complaint fails to disclose a cause of action, but the remaining allegations, taken together, make a sufficient showing of negligence. It is not alleged that the defendant caused the street to be defective, and it is urged that the complaint is insufficient because of the failure to aver knowledge, actual or constructive, on the part of appellant of said condition. If this were a suit against the municipality, the case being one of omission, the objection would be well taken, as knowledge in such a case is a constituent element in the duty owing. But in a case like this, where the facts disclose a direct and immediate duty to carry safely, growing out of the relation of carrier and passenger, we are of opinion that it is permissible to charge negligence in general terms. Turner v. City of Indianapolis (1884), 96 Ind. 51; Town of Spiceland v. Alier (1884), 98 Ind. 467; Cleveland, etc., R. Co. v. Wynant (1885), 100 Ind. 160; Pittsburgh, etc., R. Co. v. Adams (1886), 105 Ind. 151, 5 N.E. 187; Wabash R. Co. v. DeHart (1903), 32 Ind.App. 62; note to King v. Oregon, etc., R. Co. (1898), 59 L. R. A. 209.
It is contended by counsel for appellant that appellee was guilty of contributory negligence. It appears from the evidence that on March 23, 1904, appellee took passage on one of appellant's interurban cars for her home in the town of Arcadia. The car was a limited one, and it arrived at Arcadia as it was growing dark. The conductor announced the town as the car approached appellee's destination. The car did not stop at the intersection of Main street, where appellee might have alighted in safety, but it stopped a few feet beyond. At this point appellant had made a considerable excavation, for the purpose of putting gravel under its ties, with the result that the roadway was in such a condition that for a passenger to alight at said point he would be required to step down from thirty to thirty-six inches. Appellee resided on the street occupied by appellant's tracks, about one block from Main street. She admitted that she knew that the street had been torn up for some months by the building of the railroad, but she testified that for some months she had not been near the point where the car stopped, except as she went away that morning, and that she had not paid any attention to conditions there. She further testified that she noticed that morning that the roadway was uneven, but she did not know that the railroad had not been completed or that the track had not been ballasted. She was fifty-eight years of age, and her eyesight, while as good as that of most persons of her age, had failed somewhat, so that she had to wear glasses, but she was still able to pursue her vocation, which was that of a seamstress. Her left foot was not as supple as the other, owing, as she testified, to the fact that the toes of her left foot had not fully developed, and this caused her to walk with a perceptible limp. There was no one present to assist her in alighting, and in stepping down, with her left foot first, she lost her balance and fell to the ground, owing to the fact that she misjudged the distance. There were lights burning dimly in the car, and as appellee came out on the platform it seemed dark to her. She testified: She further testified that she did not hurry, and that she thought by being careful she could get down without any trouble. We have no doubt, in the circumstances of this case, that the question whether appellee was guilty of contributory negligence was for the jury. It is unnecessary to enter into a discussion of the subject, for the authorities settle the question. Buehner Chair Co. v. Feulner (1905), 164 Ind. 368, 73 N.E. 816, and cases cited; Pennsylvania Co. v. Marion (1890), 123 Ind. 415, 7 L. R. A. 687, 18 Am. St. 330, 23 N.E. 973. And see, particularly, Town of Albion v. Hetrick (1883), 90 Ind. 545, 46 Am. Rep. 230.
Appellant complains of a ruling of the court whereby appellee was permitted to show by her physician that if a woman who had been afflicted with rupture, but which had been cured, should receive a fall, in alighting from a street car, which seriously injured her ankle and strained her back, and the injury was followed by pains in the back, such injury would have a tendency to aggravate the old malady with which she had been afflicted. While there is no averment in the complaint of an aggravation of a former malady, the allegations of the complaint, which are very comprehensive, are quite sufficient to admit evidence of such fact. Aggravation of an existing condition is not regarded, at least in this State, as special damages, and it is clear that under the comprehensive allegations of injury, which the complaint in this case contains, the proof was within the issues. Ohio, etc., R. Co. v. Hecht (1883), 115 Ind. 443, 17 N.E. 297; Morgan v. Kendall (1890), 124 Ind. 454, 9 L. R. A. 445, 24 N.E. 143; Heltonville Mfg. Co. v. Fields (1894), 138 Ind. 58, 36 N.E. 529. It is urged that at the time the hypothetical question was asked the existence of the facts sustaining the hypothesis had not been shown. The evidence was received on the undertaking of appellee's counsel to follow up the question by proof of the facts. It appears to us that subsequently the facts were all testified to by appellee, but in any event the question could only have been saved by a motion, made after she had rested her case, to strike out the answer.
Appellant is in error in the assertion that there was no proof of a stiffening of appellee's fingers as a result of the breaking of her grasp on the hand-rail, and therefore the objection that these facts, which formed the basis of a further hypothetical question, were not proved, is not well taken.
Appellee's attending...
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