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

• Decision Date: 24 June 1913
• Docket Number: No. 8,045.,8,045.
• Court: Indiana Appellate Court
• Parties: NEELEY v. LOUISVILLE & S. I. TRACTION CO.

53 Ind.App. 659

102 N.E. 455

NEELEY

v.LOUISVILLE & S. I. TRACTION CO.

No. 8,045.

Appellate Court of Indiana, Division No. 1.

June 24, 1913.

Appeal from Circuit Court, Floyd County; William C. Utz, Judge.

Action by Elizabeth Neeley against the Louisville & Southern Indiana Traction Company. Judgment for the defendant, and plaintiff appeals. Reversed and remanded.Ewing & Roose and Stotsenburg & Weathers, all of New Albany, for appellant. Charles D. Kelso, of New Albany, for appellee.

HOTTEL, P. J.

This is an appeal from a judgment in favor of appellee in an action brought against it for damages for injuries alleged to have been sustained by appellant when attempting to board one of appellee's cars, at the intersection of Wenzel and Jefferson streets, in the city of Louisville, Ky.

The issues of fact were presented by a complaint and a general denial. A motion for a new trial was overruled, and this ruling presents the only error assigned and relied on for reversal. The only grounds of this motion presented and argued are those which predicate error upon the giving of instructions 1 and 2, respectively, tendered by appellee. Before setting out either of these instructions, we will indicate those averments of the complaint which charge the negligence relied on; they alone being necessary to an intelligent understanding of the questions herein discussed and determined. These averments are as follows: “Plaintiff further avers that while she was so attempting to enter upon said car for the purpose heretofore alleged, and at the time when she so had one foot upon said step of said car and so had hold of said handholds as heretofore alleged, and before she had time to step upon said car, or the platform or step thereof, the said motorman and agents and servants of said defendant then in charge of and operating said car carelessly and negligently, and without warning to this plaintiff, suddenly and rapidly started said car forward with a sudden and violent jerk, thereby throwing and jerking this plaintiff off her feet and said step, and violently throwing her to the street and ground and dragging her thereon, and injuring her.”

We will at this point also indicate some of the evidence to which said instructions were applicable, and to which we will desire to refer in our disposition of the questions presented. The appellant testified to substantially the following facts, among others: She started home from Louisville between 5 and 6 p. m.; went to the corner of Wenzel and Jefferson streets to catch her car. She had her four year old daughter with her, and was carrying two pasteboard suit boxes; each being about two feet long and three inches thick and strapped together. As the car approached, she signaled it to stop, and it stopped “on the northeast corner you always stop on, *** the north side of Jefferson and the east side of Wenzel.” The car was crowded. The vestibule where she entered was narrow, with three steps leading up to it, and there were four men on the back platform. She lifted the little girl up, some gentleman helping her, put the boxes on the step, and started to get on herself, and (using her words) “put one foot on the step and one hand on the side, and looked up to see if some one would not help me on, and then it seems the car started; just gave a jerk; *** suddenly; yes, with a jerk. *** I don't remember what happened. As soon as the car started, I remember it started, and the first thing I remember was I was on the ground, and it seemed as though my limb was doubled under me, and I remember my limb and my head hurt me a good deal at the time.”

Other witnesses testified to substantially the same facts with reference to appellant's placing her child and packages on the car, and the manner of her attempting to get on. A witness, Minnie Reynolds, testified that the car started “ very suddenly.”

Robert W. Waite, in an affidavit for continuance, made on appellee's behalf and introduced in evidence, stated in substance that a witness Rittger, if present, would testify that he was one of the four persons on the rear platform. “The car was stopped on the north side of the intersection of said Wenzel and Jefferson streets for the purpose of allowing the plaintiff, Elizabeth Neeley, to board the same; that while she was attempting to board the car, and while she had one foot on the lower step and one foot on the ground, the car was suddenly started forward, and by such forward motion caused the plaintiff to be thrown to the ground; that the reason why said car started up was because another passenger, whose name to said H. Rittger was not known, suddenly reached up, caught hold of the bell cord and pulled the same twice, thereby ringing the starting bell twice in the front platform, and notifying and causing the motorman to put the car in motion before the plaintiff had safely got on board.”

According to appellant's contention the sole question in issue between the parties on the trial of the cause, except the extent of the injuries, was whether appellee exercised the highest degree of practical care and diligence for appellant's safety while she was attempting to board the car at the time she was injured.

[1] Appellee puts the issue in a little different language when it says that “its defense *** is based upon the one ground that the accident to the appellant was caused by the unauthorized *** and unapprehended *** act of *** a passenger standing on the rear platform” of its car. This is, in effect, stating the same issue in different language only, because, while the appellee could not be charged with an injury to appellant, for which an act of one of its passengers, unauthorized and unforeseen by it, was the sole, independent, and proximate cause, yet it must be admitted that, if appellant's agents were likewise guilty of any negligence which could be said to be a proximate cause of, or to be directly connected with, the proximate cause of such injury, the fact that an act of a passenger was also a contributory cause to such injury, would not in and of itself relieve appellee from liability. North Chicago, etc., R. Co. v. Cook, 145 Ill. 551, 556-558, 33 N. E. 958;Winona, etc., R. Co. v. Rousseau, 48 Ind. App. 248, 93 N. E. 34, 1028, 1030, 1031, and authorities there cited. Hence in its last analysis the real question in issue, according to the statements of both appellant and appellee, was whether appellee exercised toward appellant, when she was attempting to board its car, that high degree of care which the law in such cases requires of carriers of the kind here involved toward their passengers.

It was to this particular question and issue that instruction No. 1 was directed and particularly applicable; hence its importance and controlling influence on the result of the case is apparent. It follows: Instruction No. 1. “*** If you find from the evidence that the conductor was inside of the car performing his duties at the time the car stopped on the north side of the intersection of Wenzel and Jefferson streets in the city of Louisville, Ky., for the purpose of allowing the plaintiff to board it, and that the conductor immediately started back to the rear platform of the car for the purpose of seeing that the plaintiff safely got aboard the car before it again started, and that, while making his way back there for that purpose, and without having any reason to apprehend that a passenger would give the starting signals before he got back to the rear platform, the car started in response to a signal, not given by any of the employés of said car or any other person authorized to do so, but by a passenger standing on the rear platform, which the motorman supposed to come from the conductor, then you are instructed the plaintiff cannot recover in said circumstances, and your verdict should be for the defendant.”

As applicable to this question the courts of appeal of this state have expressed and announced the following rules or principles:

[2] 1. “A common carrier of passengers is not, under the law, an insurer of their safety; nevertheless, the law requires of it the exercise of the highest degree of care consistent with the mode of its conveyance and the practical prosecution of its business for the safety and protection of its passengers, and it is bound to continue the exercise of such care until its passengers have alighted from the cars at their destination, at the usual place of stopping the cars.” (Our italics.) Indiana Union Traction Co. v. Keiter, 175 Ind. 268-275, 92 N. E. 982. To the same effect, but more directly applicable to the particular facts of this case is the language of the court in the case of North Chicago, etc., Co. v. Cook, 145 Ill. 551, 33 N. E. 958, quoted with approval by our Supreme Court in the case of Louisville, etc., Co. v. Korbe, 175 Ind. 450, 93 N. E. 5, 94 N. E. 768. The court in that case, in considering the duty that the carrier, through its conductors, 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. ***” Winona, etc., R. Co. v. Rousseau, supra; McCurdy v. United Trac. Co., 15 Pa. Super. Ct. 29;Leavenworth Elec. R. Co. v. Cusick, 60 Kan. 590, 57 Pac. 519, 72 Am. St. Rep. 374;Nichols v. Lynn, etc., R. Co., 168 Mass. 528, 47 N. E. 427;Haluptzok v. Railway Co., 55 Minn. 446, 57 N. W. 144, 26 L. R. A. 739; Booth v. Mister, 7 Car. & P. 66 (1); Metropolitan R. R. Co. v. Jones, 1 App. D. C. 200;...