Indianapolis St. Ry. Co. v. Schmidt, 20,324.

• Docket Nº: No. 20,324.
• Citation: 163 Ind. 360, 71 N.E. 201
• Case Date: June 08, 1904
• Court: Supreme Court of Indiana

163 Ind. 360
71 N.E. 201

INDIANAPOLIS ST. RY. CO.
v.
SCHMIDT.

No. 20,324.^*

Supreme Court of Indiana.

June 8, 1904.

Appeal from Circuit Court, Marion County; Henry Clay Allen, Judge.

Action by Joseph Schmidt against the Indianapolis Street Railway Company. From a judgment for plaintiff, defendant appeals. Transferred from Appellate Court under Act March 13, 1901 (Acts 1901, p. 590; Burns' Ann. St. 1901, § 1337u). Affirmed.

F. Winter and W. H. Latta, for appellant. Elliott, Elliott & Littleton, for appellee.

DOWLING, J.

The appellee was a passenger upon appellant's railroad, and was injured while being so carried. The complaint alleged that the accident and injury were caused by the negligence of the appellant in running its car at a high and dangerous rate of speed. A demurrer to the complaint was overruled. The answer was a general denial. A verdict was returned for the plaintiff below, a motion for a new trial was overruled, and judgment was rendered on the verdict. Error is assigned upon these rulings.

The objections taken to the complaint are that it does not charge that the act of negligence complained of was the proximate cause of the injury, and that it does not aver that the servant of the appellant in charge of the car at the time of the injury was acting within the scope of his employment. There is no merit in either point. It appears from the complaint that the appellee was a passenger for hire, and was being carried over appellant's road. He occupied a seat in the car, and was exercising ordinary care for his own safety. The appellant negligently ran its car at a high and dangerous rate of speed into a switch maintained by it on its own line, in consequence of which negligent conduct the car run off the track and against a pole in the street. The collision threw the appellee from his seat in the car to the floor and against a stove, and the conductor of the car and other passengers were thrown upon him, causing severe injuries to him. Nothing else can be understood from the averments of the complaint than that the negligent conduct of the appellant in running its car at a high rate of speed into a switch on

[71 N.E. 202]

the main line caused the car to leave the track, with the result that it ran against a pole, threw the appellee to the floor, and injured him. The negligent running of the car was the proximate cause of the accident. The fact that the car left the track and ran against an obstacle in the street, which suddenly and violently arrested its progress, thereby hurling appellee to the floor and against the stove, and throwing other persons on him, were the direct and natural consequences of the negligence charged. In view of the very strict responsibility of carriers for injuries to passengers, no great particularity is necessary in the description of the negligence by which the injury was occasioned. When an injury to a passenger occurs without his fault, negligence on the part of the carrier is presumed, and the latter can excuse himself only by showing that he exercised a very high degree of care to prevent the occurrence of such accidents as that causing the injury.

In the common-law forms of declarations against a carrier for an injury to a passenger through the negligence of the carrier the allegation generally was “that the defendant so carelessly, improperly, negligently, and unskillfully drove and managed the said [coach] that *** by and through the mere carelessness, misconduct, and negligence of the said defendant the said [coach] was overturned, by means of which said several premises the right arm of the said plaintiff became and was fractured and broken,” etc. 2 Chitty, Pl. 363. Averments of negligence even more general than this were allowed. Id. 364. The proximate cause of an accident or injury is sometimes described as the immediate cause, the nearest cause, the actual or direct cause, or the efficient cause. Louisville, etc., R. Co. v. Lucas, 119 Ind. 583, 21 N. E. 968, 6 L. R. A. 197;Terre Haute, etc., R. Co. v. Buck, 96 Ind. 346, 49 Am. Rep. 168;Chicago, etc., R. Co. v. Williams, 131 Ind. 30, 30 N. E. 696;Indianapolis, etc., R. Co. v. Houlihan, 157 Ind. 494, 503, 60 N. E. 943, 54 L. R. A. 787. It was said by Mr. Justice Strong in Ins. Co. v. Boon, 95 U. S. 117, 130, 24 L. Ed. 395, that: “The proximate cause is the efficient cause; the one that necessarily sets the other causes in operation. The causes that are merely incidental, or instruments of a superior or controlling agency, are not the proximate causes, and the responsible ones, though they may be nearer in time to the result. It is only when the causes are independent of each other that the nearest is, of course, to be charged with the disaster. A careful consideration of the authorities will vindicate this rule. Mr. Phillips, in his work on Insurance (section 1097), in speaking of a nisi prius case of a vessel burned by the master and crew to prevent its falling into the hands of the enemy (Gordon v. Rimmington, 1 Camp. 123), says the ‘maxim causa proxima spectatur affords no help in these cases, but is, in fact, fallacious; for, if two causes conspire, and one must be chosen, the more scientific inquiry seems to be whether one is not the efficient cause, and the other merely instrumental or merely incidental, and not which is nearer in place or time to the consummation of the catastrophe.”’ It is evident from the allegations of the complaint that there was but one efficient cause of the accident. The other events were the results and natural consequences of that cause. 21 A. & E. Ency. of Law, pp. 485, 486.

The appellant owed to the appellee the duty of carrying him safely to his destination on appellant's road, so far as his safety could be secured by the exercise of care commensurate with the dangers likely to occur, and reasonably to be anticipated from that mode of transportation. It was guilty of a breach of that duty in running the car in which the appellee was a passenger so fast and so carelessly that it dashed into a switch, and was thrown from the track. This was one of the dangers likely to occur, and which ought to have been anticipated and avoided by the appellant. As a result of this carelessness, the appellee was severely injured. In the regular sequence of the occurrences stated in the complaint we find every element of a legal liability for a tort, and it appears unmistakably that the negligent manner in which the car was run was the efficient cause of the injury to the appellee. Terre Haute, etc., R. Co. v. Sheeks, 155 Ind. 74, 91, 92, 56 N. E. 434;Chicago, etc., R. Co. v. Grimm, 25 Ind. App. 494, 57 N. E. 640;Indianapolis, etc., R. Co. v. Houlihan, 157 Ind. 494, 503, 60 N. E. 943, 54 L. R. A. 787;Louisville, etc., R. Co. v. Kendall, 138 Ind. 313, 36 N. E. 415;Louisville, etc., R. Co. v. Miller, 141 Ind. 533, 37 N. E. 343;Louisville, etc., R. Co. v. Jones, 108 Ind. 551, 9 N. E. 476;Louisville, etc., R. Co. v. Hendricks, 128 Ind. 462, 464, 28 N. E. 58;Louisville, etc., Co. v. Nolan, 135 Ind. 60, 34 N. E. 710;Terre Haute, etc., R. Co. v. Buck, 96 Ind. 346, 49 Am. Rep. 168; Sherlock v. Alling, 44 Ind. 184; Carrico v. West Virginia Cent., etc., R. Co., 35 W. Va. 389, 14 S. E. 12;Virginia Cent. R. Co. v. Sanger, 15 Grat. 230;Philadelphia R. Co. v. Derby, 14 How. 486, 14 L. Ed. 502; Jackson v. Tollett, 2 Starkie, 37, 3 Eng. Com. Law, 307; Crofts v. Waterhouse, 3 Bing. 319, 11 Eng. Com. Law, 119. In regard to the objection that it does not appear that the servant in charge of the car was acting within the scope of his employment, it is sufficient to say that the averment “that the defendant, through and by its servant in charge of said car, negligently ran said car,” etc., necessarily implies that the servant was acting within the scope of his agency. Any other language would be equally open to criticism. The averments as to the servant could not be misunderstood, and they were sufficient to show that the person in charge of the car was acting within the scope of his employment when he negligently ran it along the tracks of the appellant

[71 N.E. 203]

at an improper and dangerous rate of speed.

The reasons for which a new trial was demanded, discussed by counsel for appellant, are (1) that the damages assessed by the jury are excessive; (2) that the court erred in refusing to give instructions numbered 1 and 2 asked for by the appellant, and in giving instructions numbered 5, 6, 7, 9, 10, 11, and 12; and (3) in admitting certain evidence.

While the amount of the damages assessed by the jury was large, the injury was serious. The earning capacity of the appellee was upwards of $100 per month, and the effects of the accident are likely to be permanent. The facts proved fully justified the jury in assessing the sum allowed, and we find no indication in the record that in awarding it they were subject to any improper influence. It is true that evidence was introduced by the appellant which tended to show that the injuries of the appellee were probably aggravated by his failure to refrain from labor and to take proper care of himself. But the question of the amount of damages sustained by the appellee, considered in connection with all the facts relating to his care or lack of care of himself, was one to be determined by the...