Terre Haute Electric Railway Company v. Lauer
| Decision Date | 26 January 1899 |
| Docket Number | 2,507 |
| Parties | TERRE HAUTE ELECTRIC RAILWAY COMPANY v. LAUER |
| Court | Indiana Appellate Court |
From the Clay Circuit Court.
Affirmed.
George A. Knight and McNutt & McNutt, for appellant.
Azro Dyer and John Brownlee, for appellee.
OPINION
This action was commenced in the superior court of Vigo county, and tried in the Clay Circuit Court upon change of venue. The complaint is in one paragraph, and charges, in substance, that on the 2nd day of October, 1895, the defendant was a corporation duly organized under the laws of Indiana, engaged in operating an electric street railroad in the city of Terre Haute; that on the night of said day the plaintiff went into a car of the defendant, occupied a seat therein, and paid defendant's conductor in charge of said car the sum of five cents, and was received as a passenger on said car; that, proceeding on its way, said car became crowded with passengers, several of whom were ladies, and said "conductor in charge of said car requested that some of the gentlemen passengers should vacate their seats in favor of such ladies, and stand and ride upon the rear platform of said car, and thereupon, in obedience to said request, this plaintiff gave up his seat and stood and rode upon the rear platform of said car;" that while so riding, the defendant carelessly and negligently, with great force and violence, suddenly, at a high rate of speed, ran another of its cars against and into the rear platform of said car upon which plaintiff was standing, and thereby crushed and broke said platform, and caught, mashed, and crushed plaintiff's body between the ends of said cars, thereby injuring, wounding, and bruising plaintiff's side, hips and thighs. That said injuries were not caused through any fault or negligence on his part, and that by reason of said injuries he has suffered, and still suffers, great mental anguish and physical pain; that he has been compelled to expend a large sum of money for medical attention, etc., that he has been permanently disabled, and rendered incapable of performing and following his vocation, to wit, that of real estate broker, receiver, assignee and trustee; that his health has been impaired, and that by reason of said injuries plaintiff has sustained damages in the sum of $ 20,000. The cause was put at issue by general denial, tried by jury, and a verdict returned in favor of appellee, upon which a judgment was rendered for $ 1,500.
The first and second specifications in the assignment of errors question the sufficiency of the complaint; the third, the action of the court in overruling appellant's motion for a new trial.
In questioning the sufficiency of the complaint, appellant's learned counsel do not insist that it is negligence per se for a passenger to ride on the rear platform of a street car, but claim that it was negligence for appellee to leave a place of safety, which he was occupying for a place obviously more or less dangerous, upon the general request of the conductor. That there is nothing in the complaint to show that when he surrendered his seat he might not have remained standing in the car, instead of on the platform on the outside; that there is no allegation that there was not room for appellee to stand on the inside of the car. The proposition that it is not negligence per se, but a question of fact for the jury, for a passenger on a street railway to ride upon the platform, has been decided in many decisions. Marion, etc., R. Co. v. Shaffer, 9 Ind.App. 486, 36 N.E. 861; Nolan v. Brooklyn, etc., R. Co., 87 N.Y. 631; Maguire v. Middlesex R. Co., 115 Mass. 239; Burns v. Bellefontaine R. Co., 50 Mo. 139; Chicago, etc., R. Co. v. Fisher, 141 Ill. 614, 31 N.E. 406; Beal v. Lowell, etc., R. Co., 157 Mass. 444, 32 N.E. 653. Whether one ride on the platform of his own motion, or upon the request of the conductor, would not be material. The rule would be the same in either instance. We think it clear, too, that it is the duty of the passenger to follow the reasonable instructions, and rely on the judgment of those in charge of the car in regard to moving from one part of the car to another, unless it is apparent to the passenger that the movement would be attended with danger. Prothero v. Citizens', etc., R. Co., 134 Ind. 431, 33 N.E. 765; Cincinnati, etc., R. Co. v. Carper, 112 Ind. 26, 13 N.E. 122; Louisville, etc., R. Co. v. Kelly, 92 Ind. 371. The fact that appellee responded to a general request, which appealed to him as directly as to any one else in the car, should not deprive him of any right he would have had, growing out of a compliance with a request addressed to him individually. A further objection made to the complaint is that the request was unreasonable. The request to gentlemen to vacate seats occupied by them in a crowded public conveyance, in favor of ladies who would otherwise stand, is not, in this country, so regarded.
Under the third specification of the assignment of errors, to wit, the overruling of appellant's motion for a new trial, appellant's counsel discuss together the first and second reasons respectively given for a new trial, viz, that the "verdict of the jury is not sustained by sufficient evidence;" and "the verdict of the jury is contrary to law." We believe it would serve no good purpose to quote largely from the evidence, which is voluminous. We deem it sufficient to say, in passing upon these reasons for a new trial, that, while the testimony is conflicting, there is evidence which fairly tends to support the verdict on every material point. In view of the whole record, the objection urged, that there is a variance between the proof and the allegations of the complaint, is not well taken. It is only required that the evidence fairly tends to prove the substance of the issue tendered by the pleading, and this it does. Under the familiar rule of appellate courts, the judgment cannot, therefore, be disturbed.
Appellant next objects to instruction number eight, given to the jury, upon the ground that there was no evidence to which it was applicable. Said instruction is as follows: One criticism made by appellant's learned counsel of this instruction, is that "there was no evidence that the conductor in charge of appellant's car directed the plaintiff to stand on the platform." There was evidence that the conductor requested passengers to ride upon the platform. The conductor represents the company in the management of the car, so far as concerns the location of passengers. A request from one clothed with authority is practically equivalent to a direction. There is no substantial difference in the meaning of the words "request" and "direction," in the connection in which they are respectively employed in the complaint and instructions. But counsel contend that, if the request can be construed to be a direction to the plaintiff to stand on the platform, that it was error for the court to instruct that it was the duty of appellee to do so, as stated in the instruction. What we have heretofore stated as to the sufficiency of the complaint upon the duty of the passenger to follow the reasonable directions of those in charge of the car, is applicable to this instruction.
Appellant's next objection is to instruction number eleven, which is to the effect that, even though the jury find from the evidence that the conductor did not direct appellee to stand upon the platform, that fact of itself would not necessarily defeat his right to recover in this action; the question still remaining for the jury to determine whether, under the circumstances, plaintiff was guilty of negligence in leaving the inside of the car and standing on the platform, in the absence of any instructions from the conductor. Counsel contend that the complaint proceeds upon the theory that the actionable character of the negligence complained of, as to each of the facts, to wit, the collision, and the riding on the...
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