Indianapolis Traction & Terminal Co. v. Pressell

• Citation: 77 N.E. 357,39 Ind.App. 472
• Decision Date: 30 March 1906
• Docket Number: No. 5,623.,5,623.
• Court: Indiana Appellate Court
• Parties: INDIANAPOLIS TRACTION & TERMINAL CO. v. PRESSELL.

39 Ind.App. 472

77 N.E. 357

INDIANAPOLIS TRACTION & TERMINAL CO.

v.PRESSELL.

No. 5,623.¹

Appellate Court of Indiana, Division No. 2.

March 30, 1906.

Appeal from Circuit Court, Morgan County; Joseph W. Williams, Judge.

Action by Louise Pressell against the Indianapolis Traction & Terminal Company. From a judgment for plaintiff, defendant appeals. Reversed.F. Winter, W. H. Latta, and Oscar Matthews, for appellant. W. V. Rooker, for appellee.

WILEY, J.

Appellee's complaint is in three paragraphs, to each of which a demurrer was overruled. Appellant answered in two paragraphs, to the second of which a demurrer was overruled. Trial by jury; verdict and judgment for appellee. Appellant's motion for a new trial was overruled. All of the above rulings adverse to appellant are assigned as errors, and are discussed in the order named.

It is averred in the first paragraph of complaint that appellant owns and operates a system of street railways within the city of Indianapolis; that one of its lines is operated along and upon Martindale avenue, a public street in said city, and that said line intersects 23d street at right angles. That on the 8th day of May, 1903, appellant was operating its cars over and along said line; that appellee boarded one of its cars at the intersection of Washington street and Illinois street, to be carried as a passenger to the intersection of said 23d street; that where appellee entered said car the approaches thereto were paved with smooth and durable material to a point level with the top of the rail of appellant's track; that appellant accepted her as a passenger, and she was provided with, and directed to occupy, a seat in the rear of the car; that the sole and only exit from said car was at the side thereof, and over and by means of a single step permanently affixed to the side of the car, and extending the full length thereof; that said step was two feet above the top of the rail; that when the car approached the intersection of 23d street and Martindale avenue, she notified and informed appellant's servants who were operating and in control of the car, that she desired to disembark; that said servants received said notice and undertook, in compliance therewith, to stop, and they did stop the car to enable her to alight therefrom, but that “owing to the condition of the streets, and the surface of the earth at said point, said step stood at a point, to wit, three feet above the level of the earth, upon which plaintiff was compelled to step in disembarking; that the defendant, notwithstanding its duty to furnish and provide a safe place of exit *** negligently, carelessly, and wrongfully failed and refused to furnish and provide any additional step or steps, or any contrivance, other than said single step, whereby the egress of plaintiff from said car might be made in safety; that the plaintiff in the due and proper exercise of care, attempted to disembark from said car at said point, but because of the said negligence of the defendant, and its failure and refusal to do and perform its said duties, this plaintiff was thrown and fell heavily upon the earth” etc., whereby she was injured. Preceding the foregoing quotation it is averred: “That among the duties of said defendant and its said servants, in the operation of said cars on said line, *** toward passengers in said cars, and persons seeking passage thereon, and passengers seeking egress therefrom, were the following, viz., to provide for the safe receiving and discharging of passengers, and to exercise the strictest vigilance in setting them down safely, if human care and foresight can do so, including that said defendant should provide for the safe entry and exit of its patrons from its cars, and should exercise proper care with respect to its steps, platforms, approaches, and places of entrance and exit.”

The second paragraph of the complaint is identical with the first, except that it contains these additional averments, to wit, that appellant “should aid and assist those in disembarking who, owing to the exigencies of age, infirmity, or other visible cause, were unable properly and safely to disembark from said car in the time and at the place required by the defendant, and that it should aid and assist those in disembarking who, because of the elevation of the steps of the car above the surface of the earth contiguous to the place of the exit, were unable, without such aid and assistance, properly and safely to disembark from said car at the place required therefor by the defendant. That the plaintiff was then and there a woman 50 years old, of stature 5 feet in height, and of weight between 185 and 200 pounds, and by reason of the premises it became and was the duty of the defendant and its said servants to aid and assist her in disembarking from said car and to furnish and provide an additional step or steps upon which she could and might tread in disembarking from said car.”

The third paragraph is substantially the same as the second, except that it contains additional allegations as follows, to wit: “That it should so construct and maintain its tracks and places of exit proximate thereto as that the surface of the earth contiguous to the track should be level with the top of said track and free from excavations and pit-falls, which might and would imperil the safety of passengers in disembarking from said cars. And so negligently, carelessly, and wrongfully constructed and maintained its track at said point as that the level at the top of said track was a long distance, to wit, one foot higher than the surface of the street contiguous thereto and said street at said point contained, and long prior thereto had contained, an excavation and pit-fall, as the defendant and its said servants at the time well knew, or, by the exercise of ordinary diligence on their part, could and should have known.”

Actionable negligence consists in the breach of some duty owing from the defendant to the plaintiff, by reason of which plaintiff was injured. The Salem-Bedford Stone Co. v. O'Brien, 12 Ind. App. 217, 40 N. E. 430. In Faris v. Hoberg, 134 Ind. 269, 33 N. E. 1028, 39 Am. St. Rep. 261, it was said: “In every case involving actionable negligence there are necessarily three elements essential to its existence: (1) The existence of a duty on the part of the defendant to protect the plaintiff from the injury of which he complains; (2) a failure by the defendant to perform that duty; and (3) an injury to the plaintiff from such failure of the defendant. When these elements are brought together they unitedly constitute actionable negligence. The absence of any one of these elements renders a complaint bad, or the evidence insufficient.” This court, in Thiele v. McManus, 3 Ind. App. 132, 28 N. E. 327, said: “A complaint for personal injury through negligence must show a legal duty or obligation at the time and place of the injury, which the defendant failed to perform or fulfill, and that the injury was occasioned by such failure.” This was quoted with approval in Faris v. Hoberg, supra. Measured by these rules it should not be difficult to determine the sufficiency of the several paragraphs of the complaint.

By section 5454, Burns' Ann. St. 1901, it is required that a street railway track within city limits “shall conform exactly to the established grade of such street.” There is no allegation in the complaint that appellant's track at the place of injury did not conform to the established grade. We may assume, therefore, as against the pleading, that it did. There is no fact averred which shows a negligent construction, or operation of the car, and neither is there any negligence charged as to the construction of the track. As appellee approached the point where she desired to alight, she gave the signal for the car to stop. She avers...