Udell v. Citizens' St. R. Co.
| Citation | 52 N.E. 799,152 Ind. 507 |
| Parties | UDELL v. CITIZENS' ST. R. CO. |
| Decision Date | 15 February 1899 |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from superior court, Marion county; L. M. Harvey, Judge.
Action by Clarence Udell, by William C. Udell, his next friend, against the Citizens' Street-Railroad Company. Judgment for defendant, and plaintiff appeals. Affirmed.
William V. Rooker, for appellant. Miller & Elam, for appellee.
Action for damages for a personal injury sustained by the infant appellant. There were two trials of the cause in the Marion superior court, the first resulting in a disagreement of the jury. On the second trial, upon the request of appellee, in writing, made before the introduction of any evidence, the court, agreeably to the requirements of the act of 1895, directed the jury to return a special verdict. Such special verdict was prepared by counsel on either side of the cause, was submitted to the court for revision, and was in the form of interrogatories properly framed. The court gave to the jury only such general instructions concerning their duties as are suitable where a special verdict is requested, and refused to give certain special instructions tendered on behalf of appellant. On the return of the special verdict, appellant moved for judgment in his favor upon it, which motion was overruled. He also filed a motion for a new trial, and the court overruled it. Judgment was thereupon rendered for appellee on its motion. Exceptions to these rulings were saved by appellant.
The errors discussed by appellant's counsel in their briefs, and orally, are the ruling of the court on appellant's objection to appellee's request for a special verdict, the rulings on the motions for judgment on the special verdict, and the decision of the court on the motion for a new trial.
The first of these errors is not available to appellant, for the reason that no question touching the same is properly presented for the determination of the court. The appellee having filed its request for a special verdict, appellant filed his objection to it, in these words (title omitted): “The plaintiff objects to the filing of the defendant's request for a special verdict herein, for the reason that the same is filed pursuant to the act of March 11, 1895, concerning proceedings in civil cases, which act is unconstitutional and void, for the reason that it deprives the plaintiff of the right of trial by jury upon the issues as joined in the complaint and answer, and requires the jury to take from the court, and not from the pleadings, the questions to be decided by the jury.” It will be observed that the objection was only to “the filing of the defendant's request for a special verdict.” No demand was made, either before the introduction of the evidence or afterwards, that the jury be directed to bring in a general verdict. On the return of the special verdict no objection was made to it by appellant, nor was there at that time a request that the jury be sent back with instructions to make a general verdict. No motion was made for a venire de novo. If counsel for appellant thought they were entitled to a general verdict, they should have asked for it at the right time, and in the proper manner. If they thought the verdict returned by the jury was not the proper one, or that it was imperfect, they should have asked the court to set it aside and award a venire de novo. Boseker v. Cramer, 18 Ind. 44; Tidd, Prac. 922; Smith v. Jeffries, 25 Ind. 376; Elliott, Gen. Prac. § 935, and cases cited. The question as to the validity of the special verdict, however, is properly presented under the motion for a new trial, and is considered in another part of this opinion.
Did the court err in overruling appellant's motion for judgment on the special verdict, and in rendering judgment thereon in favor of appellee? The special verdict shows that appellant at the time of the accident was a boy aged about eight years and seven months, of average size, strength, and intelligence; residing with his parents on Udell street, in the city of Indianapolis, three-fourths of one mile from a public resort known as “Armstrong Park.” The appellee was the owner of, and was operating, an electric railroad for the transportation of passengers in the city of Indianapolis and in North Indianapolis, in Marion county, Ind. On June 26, 1892, appellee stopped the train, consisting of a motor car and a trailer, both being open or summer cars, with tops supported by posts, at Armstrong Park, for the purpose of receiving passengers. A long step or footboard ran along these cars on the right-hand side (when looking towards the front end), by means of which passengers entered upon the platforms or floors of said cars. The cars were provided with seats running across, from side to side, upon each of which five persons could be seated. On the left-hand side of the cars there was no step or other means of entrance, and wooden strips or slats extended from end to end on such left-hand side to prevent the ingress or egress of passengers. These slats were so adjusted that they could be raised or lowered to admit or discharge passengers on that side of the car. No passengers were received by appellee on the left-hand side of its cars at the park on the day mentioned, nor did appellee invite passengers to enter its cars on that side. Appellant, who was at Armstrong Park, got upon the forward part of the trailer car, on the left-hand side thereof; placing his feet on the boxing of the axle, and holding onto a portion of a seat with his hands. He neither paid any fare, nor offered to do so, nor was he asked for his fare by any employé of appellee. He had a nickel in his pocket, with which he could have paid such fare, and he intended to do so, if asked for it. He rode in the place described, in a stooping position, on the outside of the car, for about three-fourths of a mile, and until he arrived at Udell street, where he intended to get off. Here he was unable to retain his hold and fell off, and was run over by the wheels of the trailer. The right leg and the toes of the left foot were so crushed as to require amputation. After the train started, appellant exercised reasonable care, under the circumstances, to avoid being hurt. He could not have gotten off with safety from the time the train started until he fell, nor could he draw himself into the car, or release his hold, for the purpose of stopping it. The cars ran through from Armstrong Park to Udell street without stop. None of the employés of appellee saw the appellant when the train was in the act of starting, or while he was hanging on the outside of the trailer after the train was under way, although they might have seen him, if they had made an examination of that side of the car. No such examination was made. The place where appellant was riding was not a proper one, and was very dangerous. The car on which appellant rode was crowded with passengers, many of whom stood on the footboard or step and on the floor of the car. The position of some of these was such as to render it difficult for the employés of the appellee to see appellant. Some of these passengers were near to appellant while he was hanging on the outside of the car, and, if he had wished to do so, he could have touched them or spoken to them; thereby making them aware of his presence, or asking them to stop the car. He did neither. When appellant came to the car at the park, there was no room for him to get upon it as a passenger. A bystander told appellant to go around to the left-hand side of the car and get on, and he acted on this suggestion. When the car left the park, the seats, the aisles between the seats, the platforms, and the foot or running boards were full of passengers. Before the day of the accident, appellant had been warned against hanging on the outside of street cars and riding there. He did not know that he had no right to do so, or that it was a dangerous place to ride. In the usual way of collecting fares upon the car on which appellant was riding, the conductor could have seen appellant, and appellant knew this. Appellant intended to pay his fare, when called upon. When the passengers were entering the car at Armstrong Park the conductor and motorman were temporarily absent from it, and took no part in assisting passengers to get on or in seating them. When appellant got upon the boxing of the axle at Armstrong Park, he did not comprehend the danger of his position, but afterwards became aware of it. While appellant was standing upon the boxing of the axle and hanging on the side of the car, the train was run at the rate of 18 or 20 miles per hour. Appellant first attempted to get on appellee's cars, as a passenger, from the platform at the east entrance of Armstrong Park, but was unable to do so on account of the crowd of persons on the cars. Appellee's servants in charge of the train could have stopped it after leaving Armstrong Park, and before reaching Udell street, if they had been asked to do so.
Upon a careful review of these facts, giving to the conduct of the appellant the most favorable construction, we do not think that they sustain the proposition that appellant was a passenger upon the appellee's cars, to whom appellee owed the duty of safe carriage and immunity from injury. Appellant was not in a place intended for passengers. He was not received as a passenger. His presence on...
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