Indianapolis Street Railway Company v. Schmidt
| Decision Date | 08 June 1904 |
| Docket Number | 20,324 |
| Citation | 71 N.E. 201,163 Ind. 360 |
| Parties | Indianapolis Street Railway Company v. Schmidt |
| Court | Indiana Supreme Court |
Rehearing Denied October 13, 1904.
From Marion Circuit Court (10,736); H. C. Allen, Judge.
Action by Joseph Schmidt against the Indianapolis Street Railway Company for damages for personal injuries. From a judgment rendered on a verdict for $ 4,000, the defendant appeals. Transferred from the Appellate Court under § 1337u Burns 1901.
Affirmed.
F Winter and W. H. Latta, for appellant.
B. K Elliott, W. F. Elliott, F. L. Littleton and W. J. Beckett, for appellee.
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 ran 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 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 unskilfully, drove and managed the said [coach] that * * * by and through the mere carelessness, negligence, unskilfulness, and misconduct, 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, Pleading (13th Am. ed.), 363. Averments of negligence even more general than this were allowed. Idem. 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 (1889), 119 Ind. 583, 21 N.E. 968, 6 L.R.A. 193; Terre Haute, etc., R. Co. v. Buck (1884), 96 Ind. 346, 49 Am. Rep. 168; Chicago, etc., R. Co. v. Williams (1892), 131 Ind. 30, 30 N.E. 696; Indianapolis Union R. Co. v. Houlihan (1901), 157 Ind. 494, 503, 60 N.E. 943, 54 L.R.A. 787.
It was said by Mr. Justice Strong in Insurance Co. v. Boon (1877), 95 U.S. 117, 130, 24 L.Ed. 395:
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 Am. and Eng. Ency. Law (2d ed.), 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 (1900), 155 Ind. 74, 91, 92, 56 N.E. 434; Chicago, etc., R. Co. v. Grimm (1900), 25 Ind.App. 494, 57 N.E. 640; Indianapolis Union R. Co. v. Houlihan, supra; Louisville, etc., R. Co. v. Kendall (1894), 138 Ind. 313, 36 N.E. 415; Louisville, etc., R. Co. v. Miller (1895), 141 Ind. 533, 37 N.E. 343; Louisville, etc., R. Co. v. Jones (1887), 108 Ind. 551, 9 N.E. 476; Louisville, etc., R. Co. v. Hendricks (1891), 128 Ind. 462, 464, 28 N.E. 58; Louisville, etc., R. Co. v. Nolan (1893), 135 Ind. 60, 34 N.E. 710; Terre Haute, etc., R. Co. v. Buck (1884), 96 Ind. 346, 49 Am. Rep. 168; Sherlock v. Alling (1873), 44 Ind. 184; Carrico v. West Va., etc., R. Co. (1891), 35 W.Va. 389, 14 S.E. 12, 52 Am. and Eng. R. Cas. 393; Virginia Cent. R. Co. v. Sanger (1858), 56 Va. 230, 15 Gratt. 230; Philadelphia, etc., R. Co. v. Derby (1852), 55 U.S. 468, 14 HOW 468, 14 L.Ed. 502; Jackson v. Tollett (1817), 2 Stark. 34, 3 Eng. C. L. 307; Crofts v. Waterhouse (1825), 3 Bing. 319, 11 Eng. C. L. 160.
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 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 one and two asked for by the appellant, and in giving instructions numbered five, six, seven, nine, ten, eleven, and twelve; and (3) that it erred 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 jury, and their decision is not so evidently erroneous and extravagant as to require us to interfere and set it aside.
The first instruction tendered and requested by the appellant was properly refused. After...
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