Indianapolis Street Railway Company v. Ray
| Decision Date | 24 October 1906 |
| Docket Number | 20,852 |
| Citation | 78 N.E. 978,167 Ind. 236 |
| Parties | Indianapolis Street Railway Company v. Ray |
| Court | Indiana Supreme Court |
From Hamilton Circuit Court; Ira W. Christian, Judge.
Action by Elizabeth Ray against the Indianapolis Street Railway Company. From a judgment on a verdict for plaintiff for $ 5,000, defendant appeals. Transferred from Appellate Court under § 1337u Burns 1901, Acts 1901, p. 590.
Reversed.
F Winter and W. H. Latta, for appellant.
Smith Duncan, Hornbrook & Smith, for appellee.
Appellee sues to recover damages for injuries alleged to have been received in alighting from a car in the city of Indianapolis through the negligence of the defendant in prematurely starting the car. She was not thrown, but claims she received a severe twist or jar, which provoked to activity a dormant nervous disorder. The issue was formed by the general denial. There was a trial by jury, and verdict and judgment for appellee over appellant's motion for a new trial.
(1) Appellant assigns as independent error the insufficiency of the complaint to state a cause of action. If the question arose upon a demurrer to the complaint, we should have a different question from the one before us. In the circuit court the appellant appeared to the action, filed an answer, subpoenaed witnesses, made costs, went to trial, occupied the time of the court, and, after the verdict and judgment had gone against it, now seeks to put all the proceedings to naught by pointing out deficiencies in the complaint. There is no doubt of the right, under § 346 Burns 1901, § 343 R. S. 1881, to make the assault at this time, but to be successful the assailant must be able to show a total absence from the complaint of some material averment, or the presence of some averment that destroys the plaintiff's right of recovery, "but," says this court, in City of South Bend v. Turner (1901), 156 Ind. 418, 54 L. R. A. 396, 83 Am. St. 200, 60 N.E. 271, "mere uncertainty or inadequacy of averment, such as might have been amended and cured upon motion seasonably made, will be deemed to have been waived by a defendant who proceeds with the trial to final judgment without objection, and who brings his complaint for the first time, after the cause of action has been strengthened by the verdict of a jury, and the presumption indulged in favor of the decisions of the trial court upon motions for judgment, and for a new trial." Lengelsen v. McGregor (1904), 162 Ind. 258, 67 N.E. 524. While the allegations relating to material facts are--some of them at least--vague and uncertain, yet it cannot be said that there is a total absence of allegation of the existence of any one of them.
The first objection to the complaint is that it does not charge that appellant is a carrier of passengers. It is alleged that the defendant is a corporation organized and acting under the laws of Indiana authorizing the formation of street railway companies, and was the owner of and engaged in operating various lines of street railways in the city of Indianapolis, among others, a line running from the Union Station to Fairview Park.
The principal object of the legislature in authorizing, and of corporations in constructing, street railways, is the carriage of passengers. It is so recognized by statute (§ 5458 Burns 1901, Acts 1897, p. 201, § 1), and is a matter of such common knowledge that the courts will take notice that a company organized and operating a street railway under the laws of this State is a carrier of passengers. Hipes v. Cochran (1859), 13 Ind. 175; Fitzpatrick v. Papa (1883), 89 Ind. 17; State v. Downs (1897), 148 Ind. 324, 328, 47 N.E. 670; Ervin v. State, ex rel. (1898), 150 Ind. 332, 48 N.E. 249.
The second objection is that there is no allegation that appellant owned the car. The allegation is that the plaintiff was riding on "one of the cars of the defendant's road, running south from Fairview Park to the city of Indianapolis." The defendant was operating the particular street railway, and, if the plaintiff was a passenger on "one of the cars of that road," that is, used in the operation of that road, it made no difference whether the car belonged to the defendant or not.
The third objection is that it is not alleged that the car was a "passenger-car, or one used for the carriage of passengers." It is alleged that she desired to leave said car at New York street, and before the car arrived at that street "she sounded the electric bell provided in said car to be sounded by passengers to announce their desire to leave the car at the nearest street crossing; that the motorman in charge of said car stopped it at New York street. Said car was known as an open or summer car, with seats running across the car from side to side. The entrance and exit from the car was by means of stepping onto a board running along the side of the car, known as a running-board, and thence into the car, and from the car onto the running-board and thence onto the ground. It also had handles upon the sides of the car, "for the assistance of passengers entering or departing from the car." Here we have a car provided with electric signals to be sounded by passengers to announce their desire to get off; a car that is known as a summer or open car--one with seats running across the car from side to side, and with a running-board to assist passengers in getting on or off the car. This was a sufficient identification of the car as one used for passengers. That which is necessarily implied from specific averments of the complaint is sufficiently averred.
The fourth objection is that it does not allege that the car was under the control of the defendant. It is alleged that the road at that particular time was being operated by the defendant, and the car upon which she was riding was "one of the cars of defendant's road." This is equivalent to charging that the car was one of the cars used by the defendant in operating the road, and is sufficient after the verdict.
It is further objected that it is not alleged that the plaintiff paid or offered to pay fare, or that she had a pass, or was on the car by contract, invitation, or consent of the defendant. It is alleged that she was a passenger on the car. This averment required her to prove that she had complied with the conditions that constituted her a passenger. How she became a passenger was evidentiary. Like ownership--it is sufficient to allege ownership without alleging how it was acquired. Gowdy Gas-Well, etc., Co. v. Patterson (1902), 29 Ind.App. 261.
It is also objected that it is not shown that the defendant owed the plaintiff a legal duty; nor shown that the negligence of the conductor and motorman was the negligence of the defendant, or for which the defendant was liable; nor shown that the defendant was guilty of any negligent act; nor that the relation of master and servant existed; nor that the motorman and conductor were acting within the scope of their employment; nor that the negligence of the motorman and conductor was the proximate cause of the plaintiff's injuries.
The plaintiff was a passenger, and, being a passenger, the defendant owed her a duty. In addition to averments noted above, it is alleged that the road was being operated by the use of electricity, and the car upon which the plaintiff was a passenger was in charge of a motorman and conductor; "that she sounded the electric bell provided in said car to be sounded by passengers to announce their desire to leave the car at the nearest crossing; that the motorman in charge of said car stopped the car, * * * and the plaintiff grasped the handhold on the side of the car, placed there for the assistance of passengers entering and departing from said car, and stepped down upon the running-board for the purpose of leaving said car, and was just in the act of stepping therefrom to the surface of the street, when the conductor in charge of said car carelessly and negligently gave the motorman the signal to go forward, and the motorman carelessly and negligently, immediately, and before the plaintiff could reach the ground, started the car quickly forward" whereby the plaintiff was injured.
A corporation can act only by its agents, and the allegations that a motorman and conductor had charge of "one of the cars of the defendant's road," that is, one of the cars used in operating its road, and upon which the plaintiff was a passenger, sufficiently shows the relation of employer and employes, and, being charged with the management of the car, were performing a duty that devolved upon the employer, and for which the latter stood responsible.
Furthermore, the allegations that the plaintiff rang the bell to announce her wish to alight, and the motorman thereupon stopped the car, and while engaged in the act of getting off, but before she had alighted upon the ground, the motorman negligently, immediately, and before the plaintiff could reach the ground, started the car quickly forward, quite clearly show the negligent act complained of, and that the motorman and conductor were acting within the scope of their employment, and that their negligence was the proximate cause of the plaintiff's injuries. There are even other objections, of less importance, urged to the complaint, but from first to last, including those reviewed, there is not one that could not have been remedied by a motion to make more specific, and they must now be deemed waived. Appellant's first assignment of error cannot be sustained.
(2) An exception was reserved to the giving to the jury of instruction thirteen, requested by appellee, relating to the question of damages, and which directed the jury that, if they found the plaintiff was entitled to...
To continue reading
Request your trial