Union Traction Co. of Indiana v. Berry

• Citation: 121 N.E. 655,188 Ind. 514
• Decision Date: 31 January 1919
• Docket Number: No. 23230.,23230.
• Parties: UNION TRACTION CO. OF INDIANA v. BERRY.
• Court: Supreme Court of Indiana

188 Ind. 514

121 N.E. 655

UNION TRACTION CO. OF INDIANA

v.BERRY.

No. 23230.

Supreme Court of Indiana.

Jan. 31, 1919.

Appeal from Superior Court, Marion County; H. N. Spaan, Special Judge.

Action by Noah D. Berry, administrator of the estate of Charles Elliott, deceased, against the Union Traction Company of Indiana. Judgment for plaintiff, and the defendant appeals. Reversed, with instructions to sustain motion for a new trial.

J. A. Van Osdol, of Anderson, and Jos. R. Morgan, Frederick E. Matson, Ralph K. Kane, and James A. Ross, all of Indianapolis, for appellant.

Chas. E. Cox, Frank S. Roby, Edward W. Little, and Earl W. Little, all of Indianapolis, for appellee.

LAIRY, J.

Appellee, as administrator of the estate of Charles Elliott, recovered a judgment in the trial court for damages resulting from the death of said Elliott, which he alleges was caused by appellant in the operation of one of its cars.

The record shows that Elliott was a passenger on one of appellant's street cars in the city of Muncie, at the time he received the injury which caused his death. The car on which he was a passenger was operated on a track which extended across a bridge of White river, and which was constructed so close to the girders as to leave only a narrow space between the superstructure of the bridge and the side of the car passing over the bridge on said track. The car on which he was riding was an open car, with cross seats extending entirely across the car and with a running board along the right side. When he boarded the car he took a standing position on the rear platform, and as the car approached the bridge he decided to change his position and to occupy one of the cross seats. In attempting to do so, he stepped from the rear platform to the running board when the car was close to the bridge, and, while on the running board attempting to enter a seat, his body came in contact with the superstructure of the bridge, causing him to be knocked from the running board and killed.

The complaint alleges that the space between the superstructure of the bridge and the side of a passing car was not sufficiently wide to permit the decedent and other passengers on the car to pass between the same, which fact was well known to the defendant. It is not alleged that such condition was due to any negligence or want of proper care on the part of appellant in the construction of either the bridge or the tracks. The negligence imputed to appellant by the complaint is charged in the language following:

“Plaintiff further says that defendant was negligent and careless in the operation of said car at said time and place in this, to wit: That the defendant company ran said car in such close proximity to said post and structural work of said bridge as to endanger the lives and limbs of the decedent and other passengers while riding on defendant's said cars; that the defendant negligently and carelessly failed to give the decedent any warning of any kind, and of the car's approach to said bridge, and of the danger of colliding with said posts and girders.”

By the answer of general denial, an issue of fact was formed as to the negligence of appellant, which was submitted to the jury to be decided. Appellee asserted that, in the discharge of the duty to exercise due care for the safety of appellee's decedent, it was necessary to warn him of the danger which threatened him and which he was approaching, and that appellant failed to take such precaution. This was denied by appellant. This presented an issue of fact which the jury was required to decide from a consideration of all the surrounding conditions and the attendant circumstances as disclosed by the evidence. The evidence shows without dispute that no notice was given to appellee's decedent of the approach of the car to the place of danger described. This narrows the issue of fact thus presented to the single question, under the existing conditions and the attending circumstances as shown by the evidence, Was it incumbent on appellant to take the precaution of warning appellee's decedent of the car's approach to the bridge in order to measure up to the standard or care imposed on it by law? If the jury determined that the standard of care imposed required the exercise of such precaution, under the conditions and circumstances shown, this established the negligence of appellant.

As bearing on this question there was evidence to show that the track was so close to the side of the bridge as to expose persons on the running boards or passing cars to the danger of coming in contact with the superstructure of the bridge, and that such danger was known to appellant and its employés; and that such danger had been recognized by such employés in stopping cars before entering the bridge and requiring passengers standing on the running board to get inside the car; and in some instances, when there was not room inside the car, requiring passengers standing on the running board to alight and walk across the bridge, after which they were permitted again to board the car. There was also evidence from which the jury could have probably inferred that appellee's decedent knew of the dangerous condition, and knew that the car was close to the bridge when he stepped from the platform to the running board. On this point there is evidence that Elliott had lived on West Jackson street where he kept a grocery for about four months immediately preceding his death, and that it was necessary for him to cross the bridge, where he was afterward killed, every time that he went into the business section of the city; that he had crossed this bridge almost daily and sometimes twice a day during the time he had lived there, frequently going on the street car, but generally using his delivery wagon. The evidence further discloses that the car on which Elliott was riding was stopped just prior to the accident with its front end from 6 to 12 feet west of the entrance to the bridge, for the purpose of receiving passengers. It is undisputed that when the car started from this point it moved up an incline to the entrance of the bridge at a slow rate of speed; that Elliott was on the rear platform of the car facing the bridge; that no one was on the running board except the conductor; that after the car started the conductor, after looking back to see that no one was on the running board, stepped up into the car and began collecting fares; that he did not again look back before the accident, and that he gave no warning of the danger. From a consideration of the conditions and circumstances disclosed by the evidence, the jury was required to decide whether a person of reasonable prudence, occupying the position of conductor of the car, would have regarded it necessary or prudent, in the exercise of reasonable care for the safety of the passengers, to give a signal or warning of the danger. If, in the light of the evidence, the jury believed that the exercise of due care would have dictated such a precaution to a person of reasonable prudence so situated, then it was justified in finding that the conductor was negligent in failing to observe it; but, on the other hand, if the jury decided that the exercise of the reasonable care under the conditions and circumstances shown would not have dictated such a course to a person of ordinary prudence, then the appellant should have been acquitted of the charge of negligence....