Louisville & S.I. Traction Co. v. Leaf
| Decision Date | 11 January 1907 |
| Docket Number | No. 5,800.,5,800. |
| Citation | 40 Ind.App. 214,79 N.E. 1066 |
| Court | Indiana Appellate Court |
| Parties | LOUISVILLE & S. I. TRACTION CO. v. LEAF. |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Harrison County; C. W. Cook, Judge.
Action by Zach. T. Leaf against the Louisville & Southern Indiana Traction Company. From a judgment for plaintiff, defendant appeals. Affirmed.
Wm. Ridley and C. D. Kelso, for appellant. C. B. Stotensburg and John H. Weathers, for appellee.
Action by appellee to recover damages alleged to have been occasioned by personal injuries received by him while a passenger upon one of appellant's electric cars and by reason of its negligence. The amended complaint is in two paragraphs, in both of which it is averred that appellant is a corporation engaged in operating an interurban railway system upon which it carried passengers for hire, and that appellee took passage upon one of its cars in Jeffersonville on December 18, 1903, paid his fare to New Albany, and, desiring to leave the car at the intersection of Market and Vincennes streets, a usual stopping place, signaled the motorman to stop at such crossing at a proper distance therefrom; that when said car reached the crossing he left his seat at the invitation of the conductor and stepped down upon the step of said car to alight therefrom, but before he could step off the motorman suddenly, without warning, and negligently started said car forward with a lurch, precipitating plaintiff to the street and inflicting injuries which are described. The paragraphs are substantially the same.
A motion to make the second paragraph more specific by stating therein whether the car had, prior to its sudden start, been stopped still or was slowly moving, was overruled. There was no error in overruling this motion. The negligence complained of did not depend upon the fact to which the motion was addressed.
The complaint was sufficient as against demurrers for want of facts; each paragraph showing that appellee was thrown by the sudden starting of the car while he was in the act or position of alighting therefrom. South Chicago, etc., Co. v. Serler, 31 Ind. App. 488, 65 N. E. 599;Indianapolis, etc., R. Co. v. Brown, 32 Ind. App. 130, 132, 69 N. E. 407;Indianapolis, etc., R. Co. v. Lawn, 30 Ind. App. 515, 66 N. E. 508;Indianapolis, etc., Trans. Co. v. Derry, 33 Ind. App. 499, 71 N. E. 912.
The issue was formed by general denial; trial by jury; verdict for $1,000, with answers to interrogatories. Appellant's motion for judgment on such answers was overruled. The court did not err in such ruling, for the reason that the general verdict carried with it an affirmation of the facts averred as the basis of the action. The answers to interrogatories are not in conflict therewith. They show that appellee, in response to the call of the conductor, left his seat in the car and went upon the platform for the purpose of alighting. They also state that after the car entered the curve it became necessary to release the brakes; that the release of the brakes gave the car an additional speed without the application of more current; that it is usual, when a brake is released, for such action to increase the momentum of the car; that the speed of the car was not excessive; that more power was applied than was necessary; that all street cars have jars and sways natural to their progress, when operated in a lawful way; that cars upon curves are subject to violent motions, to lurches, and to jerks. There is no finding that the appellee was not thrown off as averred. There is, indeed, no finding that he was thrown off on account of the release of the brake, or other facts above mentioned. Nor would it follow, if such were the fact, that appellant would be released from liability. “Having caused this passenger to go upon the...
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