Thompson v. Citizens Street Railway Company
| Decision Date | 20 April 1899 |
| Docket Number | 18,143 |
| Citation | 53 N.E. 462,152 Ind. 461 |
| Parties | Thompson, by Next Friend, v. The Citizens Street Railway Company |
| Court | Indiana Supreme Court |
From the Marion Superior Court.
Affirmed.
George W. Galvin, for appellant.
W. H Latta, Ferdinand Winter, W. H. H. Miller and J. B. Elam, for appellee.
Appellant brought this action to recover damages for injuries caused by the alleged negligence of appellee.
The complaint is in two paragraphs. The first alleges that while he was engaged in the performance of his duties as an employe of appellee said appellee, by its negligence, ran its car against appellant, by which he was injured. The second paragraph states that appellee negligently ran its car at a greater rate of speed than six miles an hour, in violation of a city ordinance, and that while so running the same it ran said car against appellant, and permanently injured him.
The cause was tried by a jury, and a special verdict returned and, on motion of appellee, a judgment was rendered thereon against appellant.
The part of the special verdict necessary to the determination of this appeal is substantially as follows: Appellant, on the 4th day of March, 1893, was sixteen years of age, and of average size and intelligence for a boy of that age. He was then, and had been, in the service of appellee for more than one month at the crossing of Washington and Pennsylvania streets, in the city of Indianapolis, turning switch tongues, so as to direct cars going east on Washington street, so that they would turn and run either north on Pennsylvania street, or southeast on Virginia avenue, instead of due east on Washington street. In doing this work he became, and was on said day, familiar with the position of the said car tracks and the running of the cars thereon at said street crossing, and with the surroundings at said crossing; that said Pennsylvania and Washington street cross at right angles; that there is a double track on Washington street, which runs east and west, the cars going east running on the south track, and the cars going west running on the north track, and that these tracks connect with the double track running southeast on Virginia avenue. Appellant's duty required him to be constantly on and about these tracks, and when he turned the switch tongues his duty required him to stand between the tracks on Washington street. On March 4, 1893, appellant threw the switch tongue on the south track for a motor and trailer. There was a car, drawn by horses, following said motor and trailer so near that the horses' heads were right against the dashboard of the trailer. These horses drawing said car on said south track were frightened, and prancing about, and appellant, after throwing said switch tongue as aforesaid, believing, and having reason to believe, that he was in danger of being injured by said horses, in an effort to avoid being injured by said horses, stepped back from the south track so near to the north track that he was immediately struck by the front end of a trailer attached to a motor going west on said north track; that said motor and trailer came from the north, off of Pennsylvania street, and turned west upon the north street-car track on Washington street; that appellant, by looking and listening, could not have seen or heard the cars of appellee which struck him approaching before they entered upon the curve at Pennsylvania and Washington streets; that at the time the trailer struck him it was running at the rate of eight or ten miles per hour; that the car to which said trailer was attached was being propelled by electricity; that in stepping back to the point where he was struck, appellant exercised such care as a reasonably prudent man should have exercised under like circumstances, and was, at the time, in the exercise of the care and prudence which an ordinarily prudent person ought to have exercised under the circumstances and surroundings. There was room for appellant to stand safely between the tracks, where he was standing, but the fractious horses and the sway of the trailer made it unsafe; that appellant, before stepping back to the position in which he was struck, did not see the car that struck him, but at the time he was struck he knew that the motor car which was drawing said trailer car had just passed, running very close to his body. Appellant did not, at any time before he was struck, look to see whether said motor car was drawing a trailer or not, but he knew that motor cars, passing in the same direction, did have trailers attached. There was no evidence that there was anything to prevent his seeing the trailer that struck him, if he had looked, but, if he had seen it he could not have avoided collision with it. There was no evidence whether appellant, in stepping back to avoid the horses, looked in every direction, and endeavored to guard against other danger. It was a part of appellant's duty, at the time he was injured, to look out for, and avoid collision with, passing cars. Conductors, by signal, direct motormen when to start and when to stop cars in their charge upon appellee's road. There was nothing to direct the attention of the motorman on the motor car to which said trailer was attached to the position appellant was occupying. The motorman, by the exercise of due care and attention, could have seen the position of appellant in time to have avoided so running his car as to strike him.
The errors assigned call in question the action of the court in rendering judgment in favor of the appellee upon the special verdict.
A plaintiff must recover according to the allegations of his complaint, or not at all. In actions founded upon the alleged negligence of the defendant, the plaintiff cannot charge one kind of negligence and prove another. Cleveland, etc., R. Co. v. Wynant, 100 Ind. 160; Armacost, Adm., v. Lindley, Adm., 116 Ind. 295, 19 N.E. 138.
There is no averment in the complaint that the appellee did not provide appellant a safe place in which to work; that it failed to furnish him with safe machinery and appliances, or that it did anything which it could have foreseen would render the performance of his duties more hazardous, or that the injury was wilful. The authorities cited upon these propositions may therefore be laid out of the case.
The complaint, as has been seen, contains only (1) a general charge of negligence in running appellee's cars, and (2) a charge that the cars were run by electricity in a grossly negligent manner, at a greater rate of speed than six miles per hour, in violation of an ordinance of the city of Indianapolis limiting the speed to that rate.
The single question, therefore, is presented: Does it appear from the special verdict that the injury to the appellant was the result of the negligence of appellee in running its cars without due care, or at an unlawful rate of speed?
Upon these points the facts, as ascertained by...
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