The Louisville And Jeffersonville Ferry Company v. Nolan
| Decision Date | 21 September 1893 |
| Docket Number | 16,289 |
| Citation | 34 N.E. 710,135 Ind. 60 |
| Parties | The Louisville and Jeffersonville Ferry Company v. Nolan |
| Court | Indiana Supreme Court |
From the Floyd Circuit Court.
The judgment is affirmed, with costs.
A Dowling and J. K. Marsh, for appellant.
C. L Jewett and M. Z. Stannard, for appellee.
The amended complaint in this action is in two paragraphs, for damages for personal injuries alleged to have been sustained by the appellee, while aboard the defendant's ferry boat "Shall Cross," in the Ohio river, at Jeffersonville. The specific acts of negligence charged in the first paragraph, among others, are that the appellant failed to make the temporary stanchion, erected on the boat, secure, and that its servants caused the stage plank to come in violent contact with it, knocking it down and thereby striking and injuring the appellee. The negligence attributed to the appellant in the second paragraph consisted in its omission to fasten the stanchion securely at either end, and in permitting the stage plank to come in sudden and violent contact with the stanchion, thereby causing the injury of which complaint is made. A demurrer was filed to each paragraph of amended complaint, which was overruled, and exceptions taken by the appellant. The appellant answered, denying the matters stated in each paragraph of the complaint. The cause was removed to Floyd county, where it was tried by a jury, and a special verdict returned, assessing appellee's damages at five thousand dollars. There was a motion for a new trial, which was overruled, and the appellee excepted thereto. The appellant moved the court for judgment in its favor on the special verdict. The court overruled the motion, and the appellant excepted. Judgment was rendered on the special verdict, in favor of the plaintiff below. Appellant excepted, and presents his appeal to this court.
The evidence is set out in the bill of exceptions.
In this court, the appellant has assigned four errors:
First. The ruling of the court on the demurrer to the first paragraph of amended complaint.
Second. The ruling of the court on the demurrer to the second paragraph of amended complaint.
Third. Overruling the motion for new trial.
Fourth. The refusal to render judgment in its favor on the special verdict.
The first and second of the alleged errors are not referred to in appellant's brief; therefore, under the rules of practice of this court, they are waived (Western Union Tel. Co. v. Ferris, 103 Ind. 91, 2 N.E. 240), and the question of the sufficiency of the complaint is not raised in this court.
In the discussion of the fourth assignment of error, the appellant says: "Notwithstanding the effort of the appellee to make the verdict cover every fact necessary to entitle her to judgment, the facts found by the jury fall short of that result, and upon that verdict the motion of the appellant for judgment ought to have been sustained."
This is the only discussion by it as to the insufficiency of the facts found or of the evidence to sustain the verdict. Appellant has not specified what fact is wanting in the special verdict, nor wherein the verdict is defective, and the court discovers none, after having examined the record with some degree of care. Under so limited a discussion of so important an assignment, the court feels authorized in assuming that there is a waiver on the part of the appellant to enter into a discussion of the fourth assignment of errors, and will not explore the record further for errors not specifically pointed out. Burk v. Hill, 55 Ind. 419.
For the reasons stated, appellant will be deemed to seek a reversal, solely upon the matters discussed in the third assignment of error, viz: The alleged error of the court in overruling the motion for a new trial. Under this assignment, the learned counsel for appellant have, at some length, urged that appellee sustained her injuries on account of the acts and conduct of her fellow-passengers, and not on account of the acts or conduct of the appellant, or of any of its servants, agents or employes. The admitted facts in the case disclose that at about eight o'clock on the evening of July 18, 1888, a church society, known as the "Debt Paying Society of St. Augustine's Catholic Church," having chartered appellant's excursion boat, "Shall Cross," went on an excursion from Jeffersonville about twelve miles up the Ohio river. The crew of the boat, employes of the appellant, consisting of five persons, had charge of the vessel, which had been chartered and paid for by the society.
The church society sold tickets which entitled the persons holding them to become members of the excursion party, and the appellee, having purchased a ticket, was received upon said boat, and went upon said trip. Upon its return to Jeffersonville, about midnight, the steamer landed at the wharf, and the excursion party was put ashore about one hundred yards up stream from the regular ferry dock maintained for that purpose. Had they landed the vessel at the regular dock, the passengers, in leaving the boat, could have stepped from the deck with entire safety, thereby avoiding the necessity of using a stage plank for the purpose of exit therefrom. After the steamer had landed at the place indicated, and some parties had put out the stage plank on which about six hundred people had disembarked in safety, leaving on board probably seventy-five persons, appellee came from the upper deck, preparatory to leaving the vessel, and stepped to within four or five feet of the stage plank. Just at this time the steamer "Sunshine," another of appellant's excursion boats, having delivered its guests, drew up alongside the steamer "Shall Cross," thereby disturbing the water, and causing the last-named vessel to start in motion and drop down stream, tightening her lines. The parties, in adjusting the stage plank, had omitted to run it out far enough to cause the end resting on the deck to clear one of the temporary stanchions standing near the gateway, and as the boat dropped down stream, the end of the stage plank came in contact with the stanchion, knocking it down and injuring the appellee in the manner stated in her complaint.
From the foregoing summary of uncontested facts, the following propositions are established:
First. The appellant, on the occasion referred to, was a common carrier of passengers.
Second. The appellee was a passenger on the steamer "Shall Cross."
Third. The injury occurred by reason of the accident complained of.
It is the settled law of this State that a carrier of passengers is not an insurer of the safety of its passengers, but it is required to exercise the highest degree of care to secure their safety, and it is liable to a passenger, who is himself without fault, for any omission or failure to exercise this power, and for the slightest neglect of duty in this respect. Jeffersonville R. R. Co. v. Hendricks', Admx., 26 Ind. 228; Grand Rapids, etc., R. R. Co. v. Boyd, 65 Ind. 526; Pittsburgh, etc., R. R. Co. v. Williams, 74 Ind. 462; Terre Haute, etc., R. R. Co. v. Buck, Admx., 96 Ind. 346; Bedford, etc., R. R. Co. v. Rainbolt, 99 Ind. 551.
The question of negligence is largely dependent upon the relationship which the parties sustain to each other, and duty. Thus, in case of common carriers, it has been a rule of the law, from the earliest times, that in consideration of the great danger to human life consequent upon the neglect of duty, they must exercise the greatest practicable care for the safety of their passengers. 16 Am. and Eng. Encyc. of Law, 427.
"The passenger is entitled not only to be properly carried, but he must be carried to the end of the journey for which he has contracted to be carried, and must be put down at the usual place of stopping." Terre Haute, etc., R. R. Co. v. Buck, supra.
It is a maxim that the law looks to the proximate, and not at the remote, causes of an injury. Out of the application of this maxim grows the liability or nonliability of a defendant charged with the infliction of an injury by his negligence. Unless the alleged negligence of the defendant was the proximate cause of the injury of which plaintiff complains, there can be no recovery. For consequences of which his act or omission was only a mere condition, or remote cause, the defendant is not liable. To constitute actionable negligence, there must be not only a casual connection between the negligence complained of and the injury suffered, but the connection must be a natural and continuous sequence, unbroken by any other cause. Proximate cause is defined to be any cause which, in natural and continuous sequence, unbroken by any efficient, intervening cause, produced the result complained of, and without which the result would not have occurred. In the construction of this rule, in many cases, what seems a remote cause is held proximate, because, in examining the chain of causation, no other proximate cause appears, supposed intervening causes being found merely conditions or occasions, and not efficient causes. In this class of cases, conditions and occasions are often, but erroneously, insisted on as proximate causes. Sherman v. Stage Co., 24 Iowa 515; Storey on Bailments, sections 241, 242.
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