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

• Citation: 111 N.E. 460
• Decision Date: 16 February 1916
• Docket Number: No. 8796.,8796.
• Court: Indiana Appellate Court
• Parties: MISHLER v. CHICAGO, S. B. & N. I. RY. CO.

111 N.E. 460

MISHLER

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

No. 8796.

Appellate Court of Indiana.

Feb. 16, 1916.

Appeal from Circuit Court, Kosciusko County; Francis E. Bonser, Judge.

Action by John Mishler against the Chicago, South Bend & Northern Indiana Railway Company. From a judgment for defendant, plaintiff appeals. Reversed and remanded, with directions.

For dissenting opinion, see 111 N.E. 944.

L. W. Royse, of Warsaw, and Rose, Symmes & Kirkland, of Chicago, Ill., for appellant. Harry R. Wair, of South Bend, Perry L. Turner, of Elkhart, and W. D. Frazer, of Warsaw, for appellee.

HOTTEL, J.

This is an appeal from a judgment in appellee's favor in an action brought by appellant to recover damages for personal injuries alleged to have been caused by appellee's negligence.

The amended complaint is in one paragraph, the sufficiency of which is not questioned. The substance of its averments, necessary to an understanding of the questions presented by this appeal, are as follows:

On July 4, 1909, appellee owned and operated a street railway which ran north and south over Main street in the city of Elkhart, Ind., and the Lake Shore & Michigan Southern Railway Company operated a steam railroad which ran east and west through said city and across Main street therein. At the crossing of appellee's tracks over the tracks of the steam railroad, appellee carelessly and negligently failed to keep its road and tracks in good repair, in this, viz., it permitted its roadbed and foundation upon which its tracks rested to become uneven and irregular in height, and permitted the rails of its tracks to become loose and unstable, so that the rails were not firmly fixed to their foundation, but were loose and not equally distancedfrom each other.

It is also alleged (we quote from appellant's brief):

“That appellee failed to properly board, plank, and gravel said crossing in such manner as to afford security for passengers on its cars; that on said day the appellant became a passenger on one of appellee's cars at a regular stopping place, just north of said crossing, as said car was starting in a southerly direction over said crossing; that said car was crowded, and it was impossible for appellant to obtain a seat therein; that the aisles of said car were also crowded; that appellee was then and there running and operating its said car over said crossing at an excessive and dangerous rate of speed; that appellant was then standing on the front step of said car, and was then and there in the act of stepping on the front platform thereof, when said car began to jolt up and down and to sway to and fro because of the said rough and uneven condition of said tracks, all of which jolting and swaying was increased by the excessive rate of speed at which said car was being operated; that by reason of said jolting and swaying appellant was thrown from said car and under the wheels thereof in such a way that the wheels ran over his legs,” etc. (Our italics.)

There was a trial by jury and verdict and judgment for appellee. Appellant's motion for new trial was overruled, and this ruling is assigned as error and relied on for reversal.

The only errors discussed relate to the giving of instructions and to the admission of evidence.

[1] Objection is made to that part of the instruction No. 3, which reads as follows:

“You are the exclusive judges of the credibility of the witnesses, and what weight you will give their testimony. In determining the credibility of the witnesses and the weight to be given to their testimony, you should take into consideration the interest, if any, or lack of interest, they may have in the case,” etc.

It is insisted that the word “should” makes the concluding sentence, supra, mandatory and renders the instruction erroneous. Some of the earlier cases, including those relied on by appellant, support his contention. The Supreme Court, however, in its later decisions, while favoring the use of an expression less mandatory, expressly holds that the form of expression involved in the instruction under consideration should not work a reversal of the judgment below. Deal v. State, 140 Ind. 354, 368, 39 N. E. 930;Fifer v. Ritter, 159 Ind. 8, 11-12, 64 N. E. 463, and cases cited; In re Darrow, 175 Ind. 44, 57, 92 N. E. 369, and cases cited; Toledo, etc., R. Co. v. Fenstermaker, 163 Ind. 534, 540, 72 N. E. 561;Smith v. State, 142 Ind. 288, 293, 41 N. E. 595.

[2] Instruction No. 7 is objected to on the grounds: (1) That it did not cover the case made by the evidence, and (2) that it in effect told the jury, as a matter of law, that the plaintiff could not become a passenger on the car of the defendant by boarding it while in motion, at a place other than a regular stop or station, and in such respect stated the law incorrectly. This instruction reads as follows:

“To become a passenger upon the street car, it was not necessary that the plaintiff had actually boarded the car, bought a ticket, paid his fare, or offered to do so; but it would be sufficient to make him a passenger if he was at a regular stop or station of said car, and was in the act of boarding the same with the intention of taking passage thereon, and if in so doing he was injured because of the carelessness and negligence of the company, and without any carelessness or negligence on his part proximately contributing thereto, the defendant would be liable.

If you find, however, that the plaintiff got on the step of said car, or attempted to do so, at a place not a regular or proper stopping place while the car was in motion, and without the knowledge or consent of the defendant, or of the employés in charge of said car, he could not thus become a passenger of the defendant company, and if while on said step or in attempting to board said car he was jolted or jarred therefrom by the action of said car, and thereby injured, the defendant could not be liable therefor in this action.”

In support of the issues tendered by the averments of the complaint before set out and italicized, there was evidence tending to show that barriers were maintained at either side of the crossing here involved; that one of the regular stops of appellee's cars, where it took on passengers, was about six feet north of the north barrier. At the time in question appellee's car had stopped at this stop. Appellant was then standing on or near the north railroad track, just inside said north barrier and a few feet from the car track talking to his brother-in-law, when they decided to board the car. About this time the car started, and appellant boarded it on the front end, and got on the front step. In this connection, appellant said that he had not more than got on the step nicely, and was, he supposed, just ready to step again, when the car jerked and threw him under.

While it is, in effect, conceded by appellant that the car was moving when he attempted to board it, one of the controverted facts in the case was whether the point at which appellant boarded, or attempted to board, such car was one of its regular stopping places, and whether appellant, when injured, sustained to appellee the relation of a passenger. To such issues the instruction, as before stated, was not wholly inapplicable, and hence appellant's first objection thereto, above indicated, is not tenable.

[3] We find no authority in our own state involving the exact question presented by appellant's second objection, supra. The relation of passenger and carrier grows out of contract, and the cases generally, including those of our own state, seem to hold that such relation does not exist until the passenger has been either expressly or impliedly accepted as such by the carrier. Citizens' St. R. Co. v. Jolly, 161 Ind. 80, 67 N. E. 935;Citizens' St. R. Co. v. Merl, 26 Ind. App. 284, 287, 59 N. E. 491;Conner v. Citizens' St. R. Co., 105 Ind. 62, 4 N. E. 441, 55 Am. St. Rep. 177;Hannibal, etc., R. Co. v. Martin, 111 Ill. 219;Illinois Cent. R. Co. v. Axley, 47 Ill. App. 307;De Wire v. Boston, etc., R. Co., 148 Mass. 343, 19 N. E. 523, 2 L. R. A. 166;Duchemin v. Boston, etc., R. Co., 186 Mass. 353, 71 N. E. 780, 66 L. R. A. 980, 104 Am. St. Rep. 580, 1 Ann. Cas. 603, and cases cited in note; Davey v. Greenfield, etc., R. Co., 177 Mass. 106, 58 N. E. 172;Gordon v. West End, etc., R. Co., 175 Mass. 181, 183, 55 N. E. 990;Smith v. St. Paul, etc., R. Co., 32 Minn. 1, 2, 3, 18 N. W. 827, 50 Am. Rep. 550;Gaffney v. St. Paul, etc., R. Co., 81 Minn. 459, 462, 84 N. W. 304.

As to what particular facts constitute an invitation to become a passenger, and what facts are necessary to show an acceptance of the passenger by the carrier, there is confusion and apparent conflict in the decided cases. There is authority in other jurisdictions to the effect that where one boards a moving car at a place other than a regular stop without the invitation, express or implied, of the servants in charge of the car and without their knowledge, such person does not thereby become a passenger, and that in such a case the street car company does not owe to such person the kind and degree of care which it owes to its passengers, generally, at least until the presence of such person on the car is known by one or more of the agents in charge of such car. The rule is quite different where one boards a street car at a customary or regular stop. In such a case, the stopping of the car at such point is an implied invitation to all persons desiring to become passengers at such point to enter, and the taking of passage, or the attempt to take passage, thereon, is an acceptance of such invitation by the passenger which, generally speaking, effectuates the contract of carriage and creates the relationship and duties incident thereto. See cases cited supra.

As directly pertinent to the questions presented by the instructions under consideration, we quote from some of the cases decided by courts of other jurisdictions.

On the subject, “Who are passengers...