Indianapolis St. Ry. Co. v. Schmidt
| Decision Date | 29 November 1904 |
| Docket Number | No. 4,523.,4,523. |
| Citation | 35 Ind.App. 202,72 N.E. 478 |
| Parties | INDIANAPOLIS ST. RY. CO. v. SCHMIDT. |
| Court | Indiana Appellate Court |
On petition for rehearing. Petition denied.
For former opinion, see 71 N. E. 663.
Appellant, in support of its petition for a rehearing, says: “We undertake to say that the authorities are unanimous, explicit, and emphatic upon the proposition that, before any man can be held liable to another who has negligently placed himself in a position of peril, the first party must actually know not only that the person is in a position of peril, but that he will remain so.” If the charge was one of willful injury, the proposition stated would be correct. The authorities cited are cases where persons have been injured by locomotive engines and cars propelled by such engines, while upon the tracks of steam railroads. The duty owed by a corporation operating a steam railroad to footmen walking along or across its tracks is widely different from the duty owed by a street car company to travelers upon the city streets. The railroad company is under no obligation to exercise active vigilance as to such trespassers. It is under the duty of refraining from the infliction of willful injury upon them. Dull v. Cleveland (Ind. App.) 52 N. E. 1013. The doctrine which appellant asserts has no application to railroads laid in the street, to the use of which the public are entitled in common with the company; it consequently being bound to anticipate the rightful presence of men, women, and children on its tracks and in front of its cars. The application of such doctrine to cases like the one at bar would result in releasing the street car company from the duty of keeping a constant lookout; a duty which the law demands of corporations which have received license to propel their cars at a high rate of speed along the surface of the highway in populous districts where the public must, of necessity, pass and repass. To thus apply it would be to ignore the patent fact that the car company, and not the foot passenger or driver, propels the vehicle which constitutes the instrument of danger, because of which the duty devolves upon it to exercise constant care and watchfulness to avert injury to the other members of the public who also use the highway. If this doctrine is sound, the company would be exonerated although its motorman looks constantly to the rear, or even goes forward with his eyes shut. Thompson's Negligence...
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Indianapolis Traction And Terminal Company v. Croly
...... 402, 79 N.E. 347, 7 L.R.A. (N. S.) 143; Indianapolis. Traction, etc., Co. v. Smith (1906), 38. Ind.App. 160, 77 N.E. 1140; Indianapolis St. R. Co. . v. Bolin [54 Ind.App. 578] (1907), 41 Ind.App. 266,. 83 N.E. 754, 83 N.E. 754; Indianapolis St. R. Co. v. Schmidt (1904), 35 Ind.App. 202, 71 N.E. 663, 72. N.E. 478; Southern Ind. R. Co. v. Fine . (1904), 163 Ind. 617, 72 N.E. 589. In entering upon the. discussion of the correct application of the rule under. consideration, it is proper to remark that its application. does not so operate as to ......
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Indianapolis Traction & Terminal Co. v. Kidd
...was not a proximate, but only the remote, cause of her injuries. Indianapolis, etc., Co. v. Schmidt, 35 Ind. App. 202, 211, 71 N. E. 663, 72 N. E. 478;Birmingham, etc., Co. v. Brantley, 141 Ala. 614, 37 South, 698. This case falls clearly with the rule that, where the negligence of the defe......
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Indianapolis Traction & Terminal Co. v. Croly
......Indianapolis, etc., R. Co. v. Kidd, 167 Ind. 402, 79 N. E. 347, 7 L. R. A. (N. S.) 143;Indianapolis, etc., R. Co. v. Smith, 38 Ind. App. 160, 77 N. E. 1140;Indianapolis Street R. Co. v. Bolin, 39 Ind. App. 169, 78 N. E. 210;Indianapolis St. R. Co. v. Schmidt, 35 Ind. App. 202, 71 N. E. 663, 72 N. E. 478;Southern Indiana R. Co. v. Fine, 163 Ind. 617, 72 N. E. 589. [9] In entering upon the discussion of the correct application of the rule under consideration, it is proper to remark that its application does not so operate as to constitute ......
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Indianapolis Traction & Terminal Company v. Kidd
...... and immediately before the time of the accident, and her. socalled negligence in being in a place of danger under the. circumstances shown was not a proximate, but only the remote,. cause of her injuries. Indianapolis St. R. Co. v. Schmidt (1905), 35 Ind.App. 202, 71 N.E. 663;. Birmingham R., etc., Co. v. Brantley. (1904), 141 Ala. 614, 37 So. 698. . . This. case falls clearly within the rule that where the negligence. of the defendant is the proximate cause of the [167 Ind. 411] . injury for which suit is ......