Indianapolis St. Ry. Co. v. Brown

• Decision Date: 06 January 1904
• Citation: 32 Ind.App. 130,69 N.E. 407
• Parties: INDIANAPOLIS ST. RY. CO. v. BROWN.
• Court: Indiana Appellate Court

32 Ind.App. 130

69 N.E. 407

INDIANAPOLIS ST. RY. CO.

v.BROWN.

Appellate Court of Indiana, Division No. 2.

Jan. 6, 1904.

Appeal from Circuit Court, Hancock County; Edward W. Felt, Judge.

Action by Ida Brown against the Indianapolis Street Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Winter & Winter, Marsh & Cook, and W. H. Latta, for appellant. Wymond J. Beckett, for appellee.

ROBY, J.

Action for damages on account of personal injuries averred to have been negligently caused by appellant. Appellee was a passenger upon one of appellant's street cars within the city of Indianapolis, and while attempting to leave the car was thrown or fell to the pavement. Her theory, supported by the testimony of several witnesses, was that she signaled for the car to stop, that it did stop, and that she was in the act of stepping off when it suddenly started ahead, throwing her. Appellant's theory, supported by the testimony of several witnesses, was that she did not wait for the car to stop, but stepped off while it was in motion, and was thereby thrown. That she was injured is not disputed. As to the extent of her injury there was conflicting testimony. Verdict for appellee assessing damages at $1,200, with answers to interrogatories. Motion for new trial overruled. Judgment on verdict.

The only questions argued relate to the giving of certain instructions and the refusal to give others requested. Appellant asked that the jury be instructed that, if the accident did not happen as alleged in the complaint-i. e., by appellee starting to alight from a car that was standing still, but from one that was in motion-there could be no recovery. The answers to interrogatories show that the car was not moving. Error, if any, in refusing the instruction requested, was not, therefore, harmful. Roush v. Roush, 154 Ind. 562, 55 N. E. 1017.

The seventeenth instruction given was as follows: “If, however, the car was stopped to let the plaintiff alight therefrom, or so near stopped that an ordinarily prudent person using ordinary care to avoid accident would have deemed it safe to alight therefrom, and under such circumstances the plaintiff, using ordinary care to avoid any injury, attempted to get off the car, and while so doing was thrown to the ground and injured, by the motorman in charge of said car suddenly starting the same before she had alighted, then, and in such event, if shown by the evidence, the plaintiff would be entitled to recover damages for the injury, if any, received.” The clause of the instruction as to appellee alighting before the car stopped is, in any view, rendered harmless by the interrogatory above referred to. The question of due care on the plaintiff's part is expressly left to the jury, as should have been done. The plaintiff's right to recover is stated, if the facts are found to be that the car was stopped to let her alight, and that she, while attempting to do so, using ordinary care, was thrown and injured by the motorman suddenly starting the car before she had alighted. Had it been stated in the instruction that the plaintiff was entitled to recover, if, in view of all the facts, the motorman “negligently” started the car, it would have been unobjectionable. It is argued with force that, in the absence of such word, the instruction took the question of fact from the jury, and declared the...