Mishler v. Chicago, S.B.&N.I. Ry. Co.

• Decision Date: 03 April 1919
• Docket Number: No. 23561.,23561.
• Citation: 188 Ind. 189,122 N.E. 657
• Court: Indiana Supreme Court
• Parties: MISHLER v. CHICAGO, S. B. & N. I. RY. CO.

188 Ind. 189

122 N.E. 657

MISHLER

v.CHICAGO, S. B. & N. I. RY. CO.

No. 23561.

Supreme Court of Indiana.

April 3, 1919.

Appeal from Circuit Court, Kosciusko County; Francis C. Bowser, Judge.

Action by John Mishler against the Chicago, South Bend & Northern Indiana Railway Company. Judgement for defendant, and plaintiff appeals. Affirmed. Superseding opinions of Appellate Court 111 N. E. 460, 944;113 N. E. 310.

Rose & Symmes, of Chicago, Ill., for appellant.

Harry R. Wair, of South Bend, Perry L. Turner, of Elkhart, Deahl & Deahl, of Goshen, and W. D. Frazer, of Warsaw, for appellee.

TOWNSEND, J.

This was an action by appellant against appellee for personal injuries. A jury found for the appellee and with the general verdict returned answers to interrogatories. The questions presented arise on a motion for a new trial.

[1][2] Appellant's points in his brief are addressed to error in instructions 3, 7, 9, 12, and 13 given by the court and, to use the language of appellant's brief, “in permitting a witness to testify as an expert as to the condition of the tracks at the point in question.” Appellant's motion for a new trial, as shown by his brief, did not present instruction 3 to the trial court. Therefore it cannot be reviewed here. Nor is any question raised on the evidence by appellant's motion for a new trial, so far as appears from the brief. Therefore he presents no question under his last point.

[3] Instructions 7, 9, 12, and 13 were presented for review to the trial court by the motion for a new trial, and appellant's brief shows an exception to the court's ruling on this motion; but it does not show any exception to the giving of the instructions. Contrary to our custom, we have looked at the transcript and found exceptions saved. We would not have done this in the first instance, because an examination of the evidence and interrogatories set out in the briefs makes it clear that the verdict is right. Hence instructions would have to be very erroneous to cause a reversal. But these instructions have been considered by the Appellate Court in its opinion. Therefore we shall examine them. In order to make this discussion understandable, it will be necessary to take a cursory view of some of the evidence, some of the answers to interrogatories, and the allegations of the complaint.

Appellee's street car track is on Main street, a north and south street of the city of Elkhart, and crosses six tracks of the Lake Shore & Michigan Southern Railway Company. The north two are called the old tracks, the next two the new tracks, or Air Line, the next two are freight tracks. About 7 or 8 feet north of the north rail of the old tracks are gates to stop the street traffic, and the same distance south of the south rail of the freight tracks are gates for the same purpose. The distance between the north gates and the south gates is approximately 107 feet. Those six tracks of the Lake Shore cross the street at an angle north of west and south of east. Street cars going south stop about one-half car length north of the north gates and receive and discharge passengers at this point. The distance from this point to the north rail of the fourth Lake Shore track is between 60 and 65 feet. The particular car that appellant attempted to board was going south and made this stop at the north of the gates, the conductor going ahead on the east side of the street to a signal post which is located between the old and the new tracks. All of the evidence shows that appellant attempted to board this car while it was passing over the crossing between these gates. The evidence shows, and the jury found by answers to interrogatories, that the car was going four miles an hour over the crossing. The evidence shows, and the jury found by special interrogatory, that appellant attempted to board the car at or near the fourth track from the north, and that he attempted to go onto the front end of the car from the west side; that he caught at the handrail, missed his footing on the step, and fell, the trucks of the car passing over his right leg and left foot. The evidence shows that no one was on the front platform of the car except the motorman; that the motorman had no knowledge of appellant's presence, except that he caught a glimpse of his body as he grabbed at the car and fell. At about the moment of appellant's fall, the conductor came from the signal post heretofore mentioned, on the east side of the car, and boarded the rear platform of the car while it was moving four miles an hour, and signaled the motorman that he was on the car, and, at that instant, saw for the first time appellant's body at the side of and under the rear platform of the car.

The complaint alleges that appellant became a passenger at a regular stopping place just north of the crossing, as the car was starting over the crossing; that the car was crowded, and it was impossible for him to obtain a seat; that the aisles of said car were also crowded; that appellant was standing on the front step of the car and was in the act of stepping on the front platform when the car began to jolt, because of the rough and uneven condition of the tracks over the crossing; that the jolting and swaying of said car was increased by the excessive rate of its speed; that because of the jolting and swaying of the car and unevenness of the track he was thrown off. The jury found by special interrogatory that there were no more than six persons in the car; that nobody was in the aisles or on the platforms; that appellant attempted to board the car, as we have...