Terre Haute, Indianapolis & Eastern Traction Company v. Hunter
| Decision Date | 28 January 1916 |
| Docket Number | 8,743 |
| Citation | 111 N.E. 344,62 Ind.App. 399 |
| Parties | TERRE HAUTE, INDIANAPOLIS & EASTERN TRACTION COMPANY v. HUNTER |
| Court | Indiana Appellate Court |
Rehearing denied April 18, 1916. Transfer denied June 9 1916.
From Hendricks Circuit Court; George W. Brill, Judge.
Action by John W. Hunter against the Terre Haute, Indianapolis and Eastern Traction Company. From a judgment for plaintiff, the defendant appeals.
Affirmed.
F Winter, D. E. Watson, Otis E. Gulley, George C. Harvey and W. H. Latta, for appellant.
W. O. Dunlavy and W. W. Thornton, for appellee.
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 it was taken to the Hendricks Circuit Court. The errors assigned for a reversal are the overruling of appellant's demurrers to each of the first, second, third and fourth paragraphs of complaint, and the overruling of 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 alleging in substance, the following general facts: That decedent, a boy twelve years old, took passage at Greencastle, Indiana, on appellant's interurban passenger car for stop 32, which was west of Greencastle; that he 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 the contract and of decedent's 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 was the alleged wrongful conduct of the conductor of the west-bound car, upon which decedent was a passenger, in carrying him past stop 32, at which point he should have been permitted to alight from 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 the 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 that 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 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 position upon said track from which he could not escape, and 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 the motorman carelessly and negligently failed to do, but permitted the 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 at the time decedent was so directed by the conductor to leave the car and at the time he alighted therefrom at stop 34, he believed that he had arrived at stop 32, as he was informed by the conductor that he had arrived there; 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) that 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 its 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 in putting his decision into execution; (2) the actions of the decedent in undertaking to remain upon the track to signal the oncoming 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
We will first proceed to consider the question of what duty, if any, appellant owed to decedent after its conceded negligence in carrying him past 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 can not 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, and 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 the station in safety. 6 Cyc 541.
The case of New York, etc., R. Co. v. Doane (1888), 115 Ind. 435, 17 N.E. 913, 1 L. R. A. 157, 7 Am. St 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 the 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 that appellee had not alighted and the train was stopped, the caboose being at a point eighty to ninety 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...
To continue reading
Request your trial