Louisville & S.I. Traction Co. v. Korbe

• Decision Date: 13 January 1910
• Docket Number: No. 6,901.,6,901.
• Citation: 90 N.E. 483
• Parties: LOUISVILLE & S. I. TRACTION CO. v. KORBE.
• Court: Indiana Appellate Court

90 N.E. 483

LOUISVILLE & S. I. TRACTION CO.

v.KORBE.

No. 6,901.¹

Appellate Court of Indiana, Division No. 2.

Jan. 13, 1910.

Appeal from Circuit Court, Clarke County; Harry C. Montgomery, Judge.

Action by Mary Korbe against the Louisville & Southern Indiana Traction Company. Judgment for plaintiff, and defendant appeals. Affirmed.Charles H. Keho and George H. Voigt, for appellant. Evan B. Stotsenburg and John H. Weathers, for appellee.

RABB, P. J.

The appellant operates a street car line in the city of New Albany. The appellee claims to have been injured at a time when she was a passenger on one of its cars, and while attempting to alight therefrom. This action was brought to recover damages for such injury, on the ground that the same was occasioned by the negligence of appellant's servants in charge of its car. Appellant's demurrer to the complaint was overruled. The case was put at issue, a jury trial had, resulting in a general verdict in favor of appellee, and with the general verdict the jury returned answers to certain interrogatories submitted to them. Appellant's motion for a new trial was overruled, and judgment rendered on the verdict of the jury.

The only grounds upon which appellant claims a reversal of the judgment is that the court erred in overruling its demurrer to the complaint, and in giving the jury instructions numbered 4 and 10 requested by appellee, and refusing instruction No. 10 requested by appellant. The objection urged against the complaint is that it fails to show, by proper averment, that the place where the accident occurred was one where appellant was required to stop to let passengers alight. The averments of the complaint in this respect are as follows: “That plaintiff became a passenger on said car at the north terminus of said State street line, and she desired to be carried as a passenger on said car to the intersection of State and Spring streets, a regular stopping place on signal of said car; that as said car reached said intersection and stopping place, one of said passengers gave the usual signal for stopping, and the conductor so in charge of said car then signaled the motorman to stop said car at the intersection and stopping place; that as said car was stopping, this plaintiff got up from her seat in said car, and, as said car was coming to a stop, and while it was moving very slowly, she stepped with one foot on said running board of said car, so that she could quickly alight from said car, when it came to a full stop; that while this plaintiff was so in the act of stepping on the said running board, the conductor of said car negligently signaled the motorman in charge of said car to start said car, and in response to said signal the said car was suddenly, and to plaintiff unexpectedly, negligently started forward, with a sudden and unexpected movement thereof, by reason of which plaintiff was thrown to the ground,” etc. It thus appears that at the time the accident happened, the car was approaching a usual stopping place; that it was slowing down, in response to a signal given by a passenger on the car and the conductor to the motorman; that while in this process appellee prepared to alight when the car should stop, by arising from her seat and attempting to step on the running board. In this condition of things a duty to the passenger was clearly shown. The conductor had signaled the car to stop, and it had slowed in response to the signal, as if to stop at a regular stopping place, and therefore passengers on the car desiring to stop at such place were justified in making preparations to leave the car, and it was a duty the conductor owed them to see to it that, before he started the car forward, none of the passengers were in a position of peril, caused by the conditions thus brought about. No error intervened in overruling the demurrer to the complaint.

The fourth instruction given the jury, at the request of appellee, and complained of by appellant, was as follows: “If a car stop at a place where cars are accustomed to stop, for the discharge of passengers, a passenger desiring to alight has a right to assume that the car will remain standing long enough to enable all that desire to do so, to safely alight from said car. You are instructed that stopping a reasonable time for a passenger to alight from such car is not sufficient, but it is the duty of the conductor or other person in charge of the said car to see and know that no passenger is in the act of alighting from such car, or in a dangerous position, before putting the car of which he is in charge in motion again.” Appellant insists that this instruction fails to take into consideration the duty of the passenger to act with reasonable promptness in alighting from the car. The instruction is intended to inform the jury of the duties of the conductor of a street car in stopping and starting the same, and we think it correctly states such duty. The conductor having stopped the car, it is his duty to see that none of his passengers are in a position of peril...