Terre Haute, Indianapolis & Eastern Traction Co. v. Scott

Citation170 N.E. 341,91 Ind.App. 690
Decision Date01 May 1930
Docket NumberNo. 13867.,13867.
PartiesTERRE HAUTE, INDIANAPOLIS & EASTERN TRACTION CO. v. SCOTT.
CourtCourt of Appeals of Indiana

OPINION TEXT STARTS HERE

Appeal from Boone Circuit Court; John W. Hornaday, Judge.

Action by Otis Scott against the Terre Haute, Indianapolis & Eastern Traction Company. From a judgment for plaintiff, defendant appeals.

Affirmed.

Parr & Parr, of Lebanon, and Beasley, Aikman, O'Brien & Beasley, of Terre Haute, for appellant.

H. Willard Phipps, of Jeffersonville, Rogers & Smith, of Lebanon, and Wymond J. Beckett, of Indianapolis, for appellee.

NICHOLS, J.

Action by appellee to recover damages on account of personal injuries alleged to have been sustained by him while a passenger on appellant's interurban car, by reason of negligence, on the part of appellant's servants in charge of said car, in failing to render him assistance and to protect him in a struggle with a highwayman who had boarded the car. This is the second appeal of this case. See Terre Haute, etc., Co. v. Scott, 197 Ind. 587, 150 N. E. 777, 43 A. L. R. 1029.

The complaint upon which the cause was first tried, and the one which the Supreme Court held to be insufficient, was based on the theory that appellant was liable for the willful failure of its servant, the conductor on the car, to protect the passenger, appellee herein, under the circumstances alleged in the complaint, and for this reason the court held that the complaint was insufficient, holding that a carrier's liability to a passenger for damages because of wrongful acts of persons not in its employ, is based on the negligent failure of the carrier and its employees to afford the passenger that protection which the law requires should be given him, and by the means which were available to them, the court stating the rule to be that the care which a railroad company should exercise for the safety of its passengers is reasonable and ordinary care, such as a person of ordinary prudence would regard as reasonably necessary and proper under the circumstances.

After the cause was remanded to the Boone circuit court, appellee filed his third amended complaint that was based upon the theory of negligence. To this complaint appellant, after filing its motion to make the complaint more specific, which motion was overruled, filed its demurrer, which was overruled. The cause was then submitted to the court for trial which resulted in a judgment in favor of appellee for $2,500, from which, after appellant's motion for a new trial was overruled, this appeal, appellant assigning as error the action of the court in overruling its demurrer to the third amended complaint and its motion for a new trial, under which 52 reasons why such motion should be sustained were set out, but only one of which, that of the insufficiency of the evidence to sustain the finding of the court, is presented.

As appears above, no error is presented by appellant as to the action of the court in overruling appellant's motion to make more specific by stating the facts upon which certain alleged conclusions were based. We assume that appellant must have concluded, as we do, that every alleged conclusion in the third amended complaint was fully supported by the facts averred. Briefly stated, these facts are that the conductor saw the robbers on the car and saw one of them point a revolver at appellee; that he saw and knew appellee's peril, being but three feet away and saw the struggle between appellee and the robber and heard appellee call for assistance and protection in subduing the robber; that the conductor could...

To continue reading

Request your trial
1 cases
  • Haute v. Scott
    • United States
    • Court of Appeals of Indiana
    • 1 Mayo 1930
    ...170 N.E. 341 91 Ind.App. 690 TERRE HAUTE, INDIANAPOLIS AND EASTERN TRACTION COMPANY v. SCOTT No. ......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT