Terre Haute, I. & E. Traction Co. v. Hunter

• Decision Date: 28 January 1916
• Docket Number: No. 8743.,8743.
• Citation: 111 N.E. 344,62 Ind.App. 399
• Parties: TERRE HAUTE, I. & E. TRACTION CO. v. HUNTER.
• Court: Indiana Appellate Court

62 Ind.App. 399

111 N.E. 344

TERRE HAUTE, I. & E. TRACTION CO.

v.HUNTER.

No. 8743.

Appellate Court of Indiana, Division No. 1.

Jan. 28, 1916.

Appeal from Circuit Court, Hendricks County; George W. Brill, Judge.

Action by John W. Hunter against the Terre Haute, Indianapolis & Eastern Traction Company. From a judgment for plaintiff, defendant appeals. Affirmed.F. Winter and W. H. Latta, both of Indianapolis, D. E. Watson, of Martinsville, M. E. Foley, of Indianapolis, and Otis E. Gulley and George C. Harvey, both of Danville, for appellant. W. O. Dunlavy and W. W. Thornton, both of Indianapolis, for appellee.

SHEA, J.

Appellee, in the court below, recovered judgment for $2,000 for loss of services of his minor son, who was killed by being struck by one of appellant's cars. The cause was originally filed in the Putnam circuit court, and on a change of venue taken to the Hendricks circuit court. The errors assigned for a reversal are the overruling of appellant's demurrers to each the first, second, third, and fourth paragraphs of complaint, and its motions for judgment on the facts found in answer to interrogatories notwithstanding the general verdict and for a new trial.

The complaint was in four paragraphs. Each alleges, in substance, the following general facts: That decedent, a boy 12 years old, took passage at Greencastle, Ind., on appellant's interurban passenger car for stop 32, which was west of Greencastle, paid his fare to that point, and informed the conductor of the car of the place where he desired to alight or stop; that the fare was accepted for that place by the conductor, but, in violation of their contracts and request, he was carried beyond the place of his destination to stop 34, and was put off by the conductor at a stop which he supposed was his destination, and with which he was unfamiliar; that in attempting to return to his destination by the railway track, and crossing a creek over and upon appellant's railway bridge, the only way he knew how to cross said creek, he was killed by appellant's car which came up behind him from the west while he was still upon said railway bridge.

The specific negligence charged against appellant in the first paragraph of complaint is the alleged wrongful conduct of the conductor of the west-bound car, upon which decedent was a passenger, in carrying him by stop 32, at which he should have been permitted to alight from and get off the car, after he in person, and by his mother, Mary E. Hunter, had informed the conductor that he wished to get off said car at stop 32; the carelessness and negligence of appellant's servants in directing decedent to alight from and get off said car at stop 34; the negligence and carelessness of appellant's servants in failing to provide any means of transportation back to stop 32; and the carelessness and negligence of appellant in failing to notify decedent there would be another car going east in a few minutes.

The second paragraph of complaint contains substantially the same charge of negligence, based upon the same theory and facts, with a slight variation in the statement,to the effect that after decedent had taken passage upon said car, and before he had reached stop No. 32, he informed the conductor in person, and by his father, John W. Hunter, that he wished to alight and get off said car at that point; that after the car had passed stops 32 and 33, and before it reached a station of appellant called Hutchinson, between stops 33 and 34, the conductor called out stop 32, but the car was then approaching the station of Hutchinson, and had slowed up for the purpose of discharging and taking on passengers, whereupon decedent arose for the purpose of alighting therefrom, but the conductor informed him that it was not his place of alighting, and directed him to remain upon the car, which he did; that the car then proceeded west until it arrived at stop 34 on appellant's railway, where it stopped, and the conductor then directed decedent to get off the car, which he did.

The third paragraph of complaint is based upon the theory of last clear chance, and charges that decedent was in a perilous condition upon said track, from which he could not escape, in which position appellant's motorman saw him, and realized his danger in ample time to have stopped his car by the exercise of ordinary care, which said motorman carelessly and negligently failed to do, but permitted said car to strike and injure decedent as charged.

The fourth paragraph of complaint differs from the first and second only in that it charges that decedent, at the time he was so directed to leave the car by the conductor and did alight therefrom at stop 34, believed he had arrived at stop 32, as he was informed that he had by the conductor; that after the car had left him decedent perceived he was not at stop 32, and for the first time ascertained that he was at stop 34; so that the legal effect of the first, second, and fourth paragraphs of complaint is not essentially different.

It is argued that the demurrer should have been sustained to the first, second, and fourth paragraphs of complaint. In considering this question these paragraphs may be considered together. The objections thereto are identical, and substantially as follows: That they do not sufficiently state facts showing: (1) That appellant violated, imperfectly performed, or omitted to perform any duty it owed appellee, which would constitute actionable conduct on its part, and make it liable for the injuries complained of; (2) that the acts on the part of appellant complained of were negligently, willfully, or otherwise wrongfully performed or omitted by it; (3) the conduct upon the part of appellant which would amount in all to negligence, willfulness, or other wrongful conduct which would be actionable on its part; (4) that the alleged injuries and damage were approximately caused by any act or omission on the part of appellant which was negligent, willful, or otherwise wrongful, and for which it would be liable under the allegations of said paragraphs of complaint.

In support of this contention appellant argues that the damages sued for are not the proximate result of the alleged negligent act, because the conductor of the west-bound car was not obliged to anticipate and guard against the accident in question, and therefore was not negligent in respect to it; that the duty of the conductor does not extend so far, even in the exercise of the highest degree of care; that “the facts pleaded show the intervention of three independent agencies, after the act complained of had wholly spent its force: (1) The act of the appellee himself in deciding what route he would take in returning, and putting his decision into execution; (2) the actions of the decedent in undertaking to remain upon the track to signal the on-coming east-bound car until it was too late to get out of the way; (3) the arrival and movements of the east-bound car;” that “under the doctrine of last clear chance, the appellee knew of the act of the conductor in carrying him and his family past his station [the act complained of], and could have avoided the results thereof. His act is therefore the sole operating cause.”

[1][2] We will first proceed to consider the question of what, if any, duty appellant owed to decedent after its conceded negligence in carrying him by the station at which he should have been permitted to alight. It is argued on behalf of appellant that it owed appellee's decedent no duty as a passenger after he alighted and departed safely from stop 34, a proper station on appellant's road. Upon this proposition there is much citation of authority, and in some jurisdictions appellant's theory is sustained, but after a careful examination of all the authorities, especially those within our own state, it is the judgment of this court that appellant owed appellee's decedent the duty of using a reasonable degree of care to deliver him safely at the point of his destination; that is to say, appellant owed him this duty as a passenger until he arrived safely at stop 32. When the relation of carrier and passenger is once established, it continues until terminated by the voluntary act of the passenger, or by the act of the carrier under circumstances justifying its termination, and extends to the arrival of the passenger at his destination. It cannot be said that the act of decedent in this case voluntarily terminated the relation, because he was put off at a wrong stop without his knowledge or consent, where he was unacquainted with the surroundings. At the end of the journey the relation of passenger and carrier continues until he has had a reasonable opportunity to depart from the train or car and station is safety. 6 Cyc. 541.

The case of New York, etc., R. Co. v. Doane, 115 Ind. 435, 17 N. E. 913, 1 L. R. A. 157, 7 Am. St. Rep. 451, is an interesting case, and seems to be decisive of the question here presented. Briefly stated, the facts are that appellee, Doane, was a passenger riding in a caboose attached to a freight train, which, upon arrival at her destination, did not pull up to the platform. Appellee, relying upon the statement of a fellow passenger, and believing that said caboose would be stopped at the station, did not alight therefrom. The caboose was not stopped at the station. After some little time the conductor discovered appellee had not alighted, and the train was stopped; the caboose being at a point 80 to 90 rods beyond the station. Appellee requested the conductor to take the train to the station platform, which he refused to do, and upon the conductor's request she alighted with his assistance. Appellee was unacquainted with the locality, followed some direction of the conductor, and started to walk back to the station upon the railway track as the best route for her to take. In attempting to cross a cattle pit on the way to the station she fell and broke her arm and was...