Laws v. Hammond, Whiting and East Chicago Railway Company
| Decision Date | 25 June 1920 |
| Docket Number | 10,216 |
| Citation | 128 N.E. 52,79 Ind.App. 650 |
| Parties | LAWS v. HAMMOND, WHITING AND EAST CHICAGO RAILWAY COMPANY |
| Court | Indiana Appellate Court |
Rehearing denied November 17, 1920.
Transfer denied May 17, 1923.
From LaPorte Circuit Court; James F. Gallaher, Judge.
Action by John Laws, by his next friend, Francis Laws, against the Hammond, Whiting and East Chicago Railway Company. From a judgment for defendant, the plaintiff appeals.
Affirmed.
William J. Whinery and Darrow & Rowley, for appellant.
Frank E. Osborn, Fred C. Crumpacker and Edwin H. Friedrich, for appellee.
This action by appellant to recover damages for personal injuries sustained on account of the negligence of appellee was commenced in the Lake Circuit Court from which a change of venue was taken by appellee. Thereupon the cause was sent to the Porter Circuit Court, from which court a change of venue was taken by appellant, and the cause sent to the LaPorte Circuit Court.
The complaint, which is in one paragraph, was answered by a general denial. So much of the complaint as is necessary for this decision is as follows:
On March 30, 1915, and for many years prior thereto, appellee was operating a street railway in the city of Hammond; on said date appellee owned and operated upon its tracks a large number of electric street cars in and through the streets of said city; one of the streets upon which appellee operated its street car line was Hohman street, running north and south and one of the principal streets of said city; the appellee's line of street railway on said Hohman street consisted of two tracks north of the Grand Calumet river and between said Grand Calumet river and Gostlin street; the cars from the business part of said city, carrying passengers, therefrom, going north, pass out and over the east track of appellee's line upon said Hohman street, and the cars coming into the business part of said city from the north pass over the west track; the cars on the said line running in both directions on said Hohman street are run on schedule time, and are run both north and south on said line, at intervals of about twenty minutes; according to the schedule, and system of running such cars, appellee's cars going in opposite directions were accustomed to and did have regular and usual meeting places and points; the cars going north in stopping for passengers always stopped at the south of the cross streets, and the cars going south, in stopping for passengers, always stopped on the north of the cross streets; as soon as the passengers alighted said cars were started suddenly and rapidly in order to keep up the schedule time; one of the cross streets crossing said Hohman street north of the Grand Calumet river is Hoffman street, which said street crosses and intersects said Hohman street at right angles, said Hoffman street extending east and west; upon said Hoffman street, said appellee also operated a line of cars; west of said Hohman street said Hoffman street continued west as a paved thoroughfare, without any car tracks thereon, intersecting with Sheffield avenue, one of the principal streets of said city; on March 30, 1915, it was, and for more than two years prior thereto had been, the rule and custom of appellee to stop all cars operated and run over said Hohman street from the north over said westerly track on the north side of said Hoffman street, at a point approximately twenty-five feet north of the north line of said Hoffman street; and to cause each and all of its said cars to come to a full stop at said point before crossing said Hoffman street; on said date appellant lived on the west side of said Hohman street; appellant knew, and had known for more than two years, of the custom of said appellee to stop its cars as aforesaid, each and all of the employes, agents, servants and officers of said appellee likewise knew of said rule and custom; and it had been and was the rule and custom of appellee, when one of its cars operated on said westbound track, southbound on said Hohman street, should be about to meet or pass a car on said east track, northbound on said Hohman street, at or near an intersecting street, when passengers had been discharged from said northbound car, to sound its gong as a warning signal of its approach and intention to pass said northbound car; appellant knew of said custom and had known of same for more than two years prior to said date; said custom was known to all employes, servants and agents of said appellee and had been known to them for more than two years prior to said date.
On March 30, 1915, appellant took passage on one of appellee's said cars running upon its said line upon said Hohman street, in the business part of said city, to ride to his home on Hohman street; his home was about one hundred feet north of the intersection of said Hoffman street on said Hohman street; to reach said home he was compelled to cross the double tracks of said appellee on said Hohman street, and go north on said street; when said car on which appellant was so riding approached said Hoffman street, it did not come to a full stop for appellant and other passengers to alight therefrom until it had reached a point about or a little north of the center of said Hoffman street; when said car did come to a stop at the point aforesaid, it immediately started suddenly and rapidly northward before appellant could alight therefrom, and appellant was carried to the north side of said Hoffman street before he was able to alight from said car; he alighted from said car at the rear, and on the east side thereof, being the proper and only alighting place; at the time he alighted he did not see nor hear any other car approaching on said west track coming from the north; the car from which he had alighted started suddenly and rapidly northward, and the machinery and gearing wheels of said car made a very great and loud noise; appellant did not hear the sound of any gong or signal of any other car approaching on said west track coming from the north, and knowing and relying upon the rule and custom of said appellee as aforesaid, to stop all cars, he started across the said east track behind said car towards his home; just as he passed westward across said east track, and just as he was passing on and over the west track, and just as the car from which he had alighted started northward, as aforesaid, another car on said west track came rapidly from the north, moving at a high and dangerous rate of speed of about twenty-five miles per hour, and without sounding any gong or giving any signal, warning or notice of its approach, and without slacking its speed or stopping, as was the custom so to do, as aforesaid, said appellee carelessly, negligently and recklessly approached and ran said car across said Hoffman street at a high and dangerous rate of speed; appellant did not see nor hear said approaching car until said car, so negligently run and operated as aforesaid, was almost upon him; he made all possible exertion to avoid contact and collision with said car, but while so doing, the said car being so run and operated at said dangerous and reckless high rate of speed, ran upon and against him, struck him with great force and violence, hurled him a great distance, and threw him upon the hard pavement, by reason of which he sustained great and serious injuries, all of which are permanent; and are specifically described in the complaint. All these injuries were occasioned by the fault and negligence of the appellee, as aforesaid, and without any fault or negligence of appellant. Prayer for judgment in the sum of $ 25,000.
The cause was tried by a jury which rendered a verdict in favor of appellee, and judgment was entered against appellant accordingly.
Appellant filed a motion for a new trial which was overruled, to which ruling appellant excepted, and now prosecutes this appeal. The only error assigned and relied upon for reversal is that the court erred in overruling the motion for a new trial.
Under the error assigned, appellant complains of the giving of certain instructions by the court on its own motion and of the court's refusal to give certain instructions tendered by appellant. In considering such errors, it is not the rule of the court to consider each instruction given or refused, separately and apart from the other instructions given and as an abstract proposition of law, without regard to the evidence to which it may or may not apply. On the contrary, each instruction must be considered in its relation to the other instructions given, and with reference to the evidence given. Not all of the law of the case need be given in one instruction, but different controlling principles may be stated in separate instructions. If the instructions taken as a whole, fairly state the law applicable to the evidence, there is no reversible error.
Appellant most earnestly contends that the seventh instruction given by the court was erroneous, and that its giving constitutes reversible error. This instruction is to the effect that if the plaintiff knew that the defendant's southbound car was approaching on its southbound track, or in the exercise of reasonable observation and care for his own safety might have known that the same was approaching, and notwithstanding such knowledge, if any, proceeded upon said track in front of said car and was struck and injured, then, under such circumstances, he could not recover.
Appellant bases his contention largely upon the authority of Saylor v. Union Traction Co. (1907), 40 Ind.App. 381, 81 N.E. 94. In that case the controversy was as to whether the injured...
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