Indianapolis St. Ry. Co. v. Haverstick

• Decision Date: 18 April 1905
• Docket Number: No. 5,195.,5,195.
• Citation: Indianapolis St. Ry. Co. v. Haverstick, 35 Ind.App. 281, 74 N.E. 34 (Ind. App. 1905)
• Parties: INDIANAPOLIS ST. RY. CO. v. HAVERSTICK.
• Court: Indiana Appellate Court

35 Ind.App. 281

74 N.E. 34

INDIANAPOLIS ST. RY. CO.

v.HAVERSTICK.

No. 5,195.

Appellate Court of Indiana, Division No. 2.

April 18, 1905.

Appeal from Circuit Court, Morgan County: Geo. W. Grubbs, Special Judge.

Action by James M. Haverstick against the Indianapolis Street Railway Company. Judgment for plaintiff. Defendant appeals. Affirmed.

F. Winter, W. H. Latta, and Oscar Mathews, for appellant. Doan & Orbison and David Watson, for appellee.

WILEY, J.

Appellee recovered a judgment against appellant for injuries sustained by him while he was a passenger on one of its cars in the city of Indianapolis. His complaint was in one paragraph, to which an answer in two paragraphs was filed. Two errors are assigned: (1) That the complaint does not state facts sufficient to constitute a cause of action, and (2) that the trial court erred in overruling appellant's motion for a new trial. The first error assigned is waived by appellant's failure to discuss it. The errors relied upon, as presented by the overruling of the motion for a new trial, rest upon certain instructions given by the court, and the admission and rejection of certain evidence.

The accident resulting in appellee's injury occurred on Thirteenth street, in the city of Indianapolis, where appellant maintains two street car tracks parallel to each other, and over which it operated cars. The complaint avers that appellant had taken up the south track, from a point near where Thirteenth street crosses the Lake Erie & Western tracks, for a distance of about two squares east of said crossing; that appellant had provided a temporary switch, whereby the cars going outward were transferred from the south track to the north track, and when so transferred they ran along the north track to a point where the south track was not torn up, and where the cars ran onto the south track by means of another switch. It is averred in the complaint that the car upon which appellee was riding was an open one, with the seats running crossways, with a broad running board or step upon one side, said step being on the south side of said car as the same was going eastward; that when he took said car all the seats were occupied; that persons were standing between the seats; that the platforms in the front and rear were occupied when appellee took passage thereon; that at the time he took passage on said car there were some 12 or 15 passengers standing and riding upon the running board. It is further alleged that appellee stood upon the running board of said car, and that the same was a safe place to ride had the car been operated in a careful and prudent manner; that appellant invited appellee to stand upon said running board, and took his fare, and that appellant knew there was no other place upon said car that he could take passage; that appellant, when the car had reached the crossing of Thirteenth street and the tracks of the Lake Erie & Western Railway Company, or near there, suddenly, negligently, and without warning turned said car off of said south track onto the north track; that at the time it was dark and impossible for appellee to see. It is further averred that in Thirteenth street, just south of the north track, appellant had placed a number of poles upon which to support the electric wires, said cars being propelled by electricity; that said poles are placed at such a distance that only about a six-inch space is between them and a moving car. It is then averred that: “And plaintiff says that it was dark and he could not see said poles, and that this defendant suddenly and negligently turned said car upon said north track, and suddenly and negligently increased the speed of said car to a high and dangerous rate, and suddenly, negligently, and without warning passed one of said poles, negligently hurling the body of this plaintiff against one of said poles.” The answer was a denial and an affirmative plea of settlement. To the second paragraph of answer a reply of denial was filed.

Of the several instructions given by the court, appellant only predicates error upon the eighth and thirteenth. These are as follows:

“(8) An act or a failure to act under such circumstances that a person of ordinary care, caution, and prudence would not have apprehended danger therefrom, is not an act or failure to act, in law, as would amount to contributory negligence. So in this case, if you find from the evidence that the car upon which plaintiff took passage was full of passengers, the seats being all filled; that after getting on said car he stood upon the running board of said car, holding to the handholds upon the said car -such act of so riding upon said running board of said car would not constitute negligence upon his part, such as would bar a recovery in this action.”

“(13) As to the plea of compromise and settlement of plaintiff's cause of action and claim for damages in this action, I instruct you that the burden is upon the defendant to prove said plea of settlement and payment by a preponderance of the evidence. To sustain said plea of settlement and payment it must clearly appear that a definite and distinct proposition was made upon the part of the company defendant, which proposition in its terms was accepted by the plaintiff in settlement and adjustment of his claim for damages.”

The eighth instruction correctly states an abstract proposition of law. Marion St. Ry. Co. v. Shaffer, 9 Ind. App. 486, 36 N. E. 861. In Pomaski v. Grant, 119 Mich. 675, 78 N. W. 891, the court said: “Error is assigned on an instruction to the jury that it was not negligence for the plaintiff to ride on the running board of this car. We think, in view of the testimony in the case, there was no error in this. The plaintiff testified that the car was full, and that he could not get inside, and this testimony was not disputed.” In Graham v. McNeill (Wash.) 55 Pac. 631, 43 L. R. A. 300, 72 Am. St. Rep. 121, it was held that: “It is not contributory negligence, as a matter of law, for a passenger to stand on the platform, when the cars are full, in a position in which a person exercising ordinary care would be safe if the train was run in a careful manner.” To the same effect are the following cases: Pendergast v. Union Ry. Co. (Sup.) 41 N. Y. Supp. 927;Metropolitan Ry. Co. v. Snashall, 3 App. D. C. 420;Cogswell v. West St., etc., Co. (Wash.) 31 Pac. 411; Clark on “Accident Law,” § 37; Nellis on “Street Surface Railroads,” 472. Upon the question as to whether appellee was guilty of contributory negligence, the court fully and correctly instructed the jury in its seventh and ninth instructions. These instructions were applicable to the evidence, and we cannot believe that the jury was misled by the eighth instruction.

Appellant insists that the thirteenth instruction was prejudicial, for two reasons: “First, because the court said ‘it must clearly appear.’ This language placed on the appellant a heavier burden than the law imposes in proving its defense. Second, because the court said to the jury that there could be only a compromise by a proposition from the defendant and its acceptance by the plaintiff. Now we respectfully call attention to the fact that we alleged and proved that the proposition came from the plaintiff and was accepted by the defendant. In other words, the court virtually ruled out the whole question of...