Indianapolis St. Ry. Co. v. Dawson
| Decision Date | 17 November 1903 |
| Citation | 31 Ind.App. 605,68 N.E. 909 |
| Parties | INDIANAPOLIS ST. RY. CO. v. DAWSON. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from Superior Court, Marion County; Vincent G. Clifford, Special Judge.
Action by George J. Dawson against the Indianapolis Street Railway Company. From a judgment in favor of plaintiff for the sum of $500, defendant appeals. Affirmed.
Winter & Winter and Will H. Latta, for appellant. I. D. Blair and O. V. Royall, for appellee.
Action by appellee. Verdict and judgment for $500. Demurrers to first and second paragraphs of complaint overruled. Motion for a new trial overruled.
It is averred in the first paragraph of complaint, in substance, as extracted from a multitude of words: That appellant was, on August 25, 1901, a corporation operating a street railway system in Indianapolis and was a common carrier for hire. That it owned a park near said city, and maintained certain attractions thereon to induce persons to ride on its cars inviting them to said park. On the day named it gave a free band concert therein, the same having been extensively advertised prior thereto. That on said day appellee, accompanied by a lady, took passage upon one of its regular cars, and was conveyed to said park. That a large number of persons were daily transported thereto, among them a large number of lawless persons who were hostile to colored people, of whom appellee was one, their names being unknown to plaintiff, and who had long before said day entered into a conspiracy “to suppress, molest, assault, and insult colored people generally who might visit said park.” That in pursuance of such conspiracy said persons assaulted and beat appellee, and drove him from the park. That he and his companion demeaned themselves in a ladylike and gentlemanly manner, but upon arriving at the park were set upon by a large number of white boys and young men, appellee being assaulted and beaten by them. That appellant had, and had had for a long time prior to said day, full notice and knowledge of said conditions, and of the unlawful purposes aforesaid, and of acts of violence committed thereunder, but took no steps to prevent such conduct. That early in the afternoon of said day said lawless men and boys began marching and drilling openly in said park preparatory to an attack upon any colored male person who should be found there later, appellant taking no steps to prevent such conduct or to notify colored people of the danger, although it had knowledge thereof. That neither appellant nor its officers made any objection to the open and notorious gathering of white men and boys for the unlawful purpose stated. That it was negligent and indifferent in not employing and using a sufficient number of guards and policemen to maintain the peace. That two of its guards or policemen aided and abetted the wrong done appellee by standing by while he was being unmercifully beaten by said crowd of lawless white men and boys, and offering him no assistance, although they were able to do so, and could have prevented injury to him. “Wherefore, by reason of the matters therein stated, the plaintiff has been damaged,” etc. The second paragraph of complaint is somewhat more extended than the first one, but for the purpose of this opinion the statement made is sufficient.
The pleading charges appellant with notice of the alleged conspiracy, with acquiescence therein, and, by its guards or policemen, with passive participation in the actual assault made upon appellee. “When one expressly or by implication invites others to come upon his premises, whether for business or any other purpose, it is his duty to be reasonably sure that he is not inviting them into danger, and to that end he must exercise ordinary care and prudence to render the place reasonably safe for the visit.” Cooley, Torts (2d Ed.) 718; Howe v. Ohmart, 7 Ind. App. 33, 38, 33 N. E. 466;Richmond v. Moore's Adm'r (Va.) 27 S. E. 70, 37 L. R. A. 258;North Manchester v. Wilcox, 4 Ind. App. 141, 30 N. E. 202;Penso v. McCormick, 125 Ind. 116, 25 N. E. 156, 9 L. R. A. 313, 21 Am. St. Rep. 211. No case has been cited or found where the premises upon which the injury complained of occurred, and to which the complainant came by invitation, were made unsafe through a conspiracy of the nature set up herein. Danger usually has been attributed to some defect in the premises themselves. But as a matter of principle it is quite as reprehensible to invite one knowing that an enemy is awaiting him with intent to assault and beat him as it would be to invite him without having made the floor or the stairway secure. One attending an agricultural fair in response to a general invitation extended to the public has been awarded damages against the association where his horse was killed by target shooting upon a part of the ground allowed for such purpose. Conradt v. Clauve, 93 Ind. 476, 47 Am. Rep. 388. Judgments have also been sustained: When spectators rushed upon a race track, causing a collision between horses being driven thereon. North Manchester, etc., v. Wilcox, 4 Ind. App....
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