Louisville And Southern Indiana Traction Company v. Korbe

• Citation: 94 N.E. 768,175 Ind. 455
• Decision Date: 18 April 1911
• Docket Number: 21,793
• Parties: Louisville and Southern Indiana Traction Company v. Korbe
• Court: Supreme Court of Indiana

94 N.E. 768

175 Ind. 455

Louisville and Southern Indiana Traction Company v. Korbe

No. 21,793

Supreme Court of Indiana

April 18, 1911

Original Opinion of November 29, 1910, Reported at: 175 Ind 450.

OPINION

Jordan, J.

Appellee has petitioned for a rehearing in this appeal, on the ground that we erred at the former hearing in holding that instruction four, given at appellee's request, was erroneous. We affirmed in our original opinion that the vice of this charge was that thereby the trial court informed the jury, as a legal proposition, that it is the duty of the conductor, or other person in charge of a street-car, to see and to know that no passenger is in the act of alighting therefrom, or in a dangerous position, before putting the car in motion; that the jury was thereby given to understand that under all circumstances it is the duty of the conductor in charge of a street-car to see and know that no passenger is in the act of alighting from such car.

Counsel for petitioner cite no authorities that can be said to uphold the correctness of the charge in question. In addition to the cases that we cited in the original opinion condemning the instruction, we cite the following: Millmore v. Boston, etc., Co. (1907), 194 Mass. 323, 80 N.E. 445, 11 L. R. A. (N. S.) 140, 120 Am. St. 558; North Chicago St. R. Co. v. Cook (1893), 145 Ill. 551, 33 N.E. 958; Wabash River Traction Co. v. Baker (1906), 167 Ind. 262, 78 N.E. 196; Citizens St. R. Co. v. Jolly (1903), 161 Ind. 80, 67 N.E. 935; Gilbert v. West End St. R. Co. (1894), 160 Mass. 403, 36 N.E. 60; Colorado, etc., R. Co. v. McGeorge (1909), 46 Colo. 15, 102 P. 747, 133 Am. St. 43.

The case of North Chicago St. R. Co. v. Cook, supra, arose out of the alleged negligence of defendant street railway company in injuring plaintiff while he was attempting to board one of its street-cars. The court in that appeal, in considering the duty that defendant company, through its conductor, owed to the plaintiff, said: "Carriers of passengers are held to the exercise of the utmost or highest degree of care, skill and diligence for the safety of the passenger that is consistent with the mode of conveyance employed. The car or train was in control of the conductor, and he was required to know, if by the exercise of due care, caution and diligence in the discharge of his duties he could know, whether any person was attempting to get on or off his train or car, before permitting the same to start in such manner as would be liable or likely to injure a person so getting on or off the same."

In Millmore v. Boston, etc., Co., supra, the court, in speaking of what was required of the conductor in charge of a car, said: "He must exercise reasonable care, as above defined, to see that the passenger is on or off the car. On the other hand, the rule is not that he must absolutely see whether the passenger is on or off. In this, as in every other detail, there is resting upon him the same degree of care, namely, the highest care consistent with the proper transaction of the business; and, if he has exercised that degree of care, he has not been negligent."

There are many other authorities upon the same line, but we do not deem it necessary to cite them. It is sufficient to say that all are in harmony with our holding in respect to the instruction in this case, and also with the rule affirmed in the case of Indiana, etc., Traction Co. v. Keiter (1911), ante, 268.

Under the law as announced by the court, by the instruction in question, the jury may...