Union Traction Co. of Indiana v. Alstadt

• Decision Date: 16 May 1924
• Docket Number: No. 24674.,24674.
• Citation: 143 N.E. 879,195 Ind. 389
• Parties: UNION TRACTION CO. of INDIANA v. ALSTADT.
• Court: Indiana Supreme Court

195 Ind. 389

143 N.E. 879

UNION TRACTION CO. of INDIANA

v.ALSTADT.

No. 24674.

Supreme Court of Indiana.

May 16, 1924.

Appeal from Circuit Court, Randolph County; Theo. Shockney, Special Judge.

Action by Daniel B. Alstadt against the Union Traction Company of Indiana and another. From judgment for plaintiff against named defendant, it appeals. Transferred from Appellate Court under Burn's Ann. St. 1914, § 1394, cl. 2. Affirmed.

Superseding opinion of Appellate Court (139 N. E. 333).

J. A. Van Osdol, of Anderson, for appellant.

E. R. Templer and C. C. Ball, both of Muncie, for appellee.

MYERS, J.

This was an action by appellee to recover damages for personal injuries sustained by him while riding on a street car operated by appellant as the result of a collision between the street car and a cut of freight cars of the Lake Erie & Western Railroad Company. Trial was had before a jury, and verdict for the defendant Director General of Railroads and in favor of appellee against appellant for $5,000. The judgment was in accordance with the verdict. For a reversal of that judgment appellant appealed, and has assigned as errors the overruling of its demurrer to the complaint, and the overruling of its motion for a new trial.

Appellant insists that the complaint fails to state facts showing that appellee was a passenger upon the street car, in that it failed to allege that the car, at the point where appellee boarded it, was stopped to take on or let off passengers, or that appellee was lawfully on the car, or facts from which the court can say as a matter of law that the relationship between appellant and appellee was that of carrier and passenger. For the purposes of this contention, a mere reference to certain statements of the complaint will suffice to indicate the point involved.

The complaint alleged that on April 8, 1919, appellant was engaged in the business of operating street cars in the city of Muncie, Ind., as a common carrier of passengers for hire; that it had tracks running practically north and south on Madison street intersecting tracks of the Cleveland, Cincinnati, Chicago & St. Louis Railroad and tracks of the Lake Erie & Western Railroad Company; that the tracks of the former railroad company were located about 50 feet south of the latter company's tracks; that at that time, and for some time prior thereto, both of these railroads used their tracks for switching purposes and in the operation of their passenger and freight trains; “that he (appellee) boarded one of the passenger cars of the codefendant Union Traction Company of Indiana while same was stopped at a regular stopping place to take on passengers, and which car was then and there bound for the center of said city, and took a seat about the middle of said car on the west side thereof, and remained thereon as a passenger until the same was wrecked as hereinafter stated;” that said street car was then controlled by a motorman and conductor in charge of the car, who were employees of appellant; “that while plaintiff was then a passenger on said car there were other passengers on said car;” that when the car reached Madison street it turned north and continued on that street until stopped south and near the Cleveland, Cincinnati, Chicago & St. Louis Railroad Company's tracks; that it was then the duty of the conductor in charge of the car to go forward to the Lake Erie & Western Railroad Company's tracks, look east and west, and listen for approaching trains, which he negligently failed to do; that appellee was then and there injured “without any fault or negligence on his part and while he was seated as a passenger in said street car.”

Appellant, in support of its insistences, cites the case of Ohio & Mississippi Railway Company v. Craucher, 132 Ind. 275, 31 N. E. 941, wherein it is said:

“The allegation that he took passage to be carried from one station to another is a fact that made him a passenger.”

In the instant case the declaration that he boarded one of appellant's passenger cars at a certain outpoint in the city bound for the center of the city, when considered in the light of street car service, is a statement quite as broad and comprehensive as the one quoted from the case cited and held sufficient to disclose the relation of carrier and passenger. While the question on demurrer as to whether the relation of carrier and passenger exists as a matter of law is always determined from the pleaded facts and circumstances, yet the strict, positive, and direct allegation rule has been greatly modified, so that now facts shown by conclusions and participial expressions will be given the same force and effect as those directly stated. Fauvre Coal Co. v. Kushner, 188 Ind. 314, 123 N. E. 409;Rochester Bridge Co. v. McNeill, 188 Ind. 432, 122 N. E. 662;Domestic Block Coal Co. v. De Armey, 179 Ind. 592, 100 N. E. 675, 102 N. E. 99;Rodebaugh v. Rodebaugh (Ind. App.) 138 N. E. 263.

From the complaint any one would readily understand that appellee was riding in one of appellant's passenger cars-a public conveyance-at the time of the alleged collision and injury. Moreover, it appears that while appellee was seated as a passenger and was being transported toward the center of the city of Muncie, the collision occurred by reason of the negligence of appellant's employees in charge of the car. If it be conceded that the statement of appellee that he was a “passenger” is a conclusion depending upon facts and circumstances showing him to be such, yet it will not do to say that the pleader's use of the word “passenger” was not correctly interpreted by appellant as meaning rightfully on the ill-fated car as a public conveyance of passengers subject to the rules governing such service.

It is alleged that the car was stopped at a regular stopping place to take on passengers. Appellee entered the car at that point and took a seat near the middle of the car. These facts alone as to the point in question would sustain the complaint as against the demurrer, according to the rule anounced in Hall v. Terre Haute Electric Co., 38 Ind. App. 43, 76 N. E. 334; but it is said that there is no averment that appellee paid or offered to pay his fare. The absence of this allegation would not destroy the force of others to the effect that appellee was a passenger, nor relieve appellant of the duty of exercising care commensurate with the danger to which it subjected appellee in the operation of the car over the other railroad tracks. Indianapolis Traction & Terminal Co. v. Lawson, 143 Fed. 834, 74 C. C. A. 630, 5 L. R. A. (N. S.) 721, 6 Ann. Cas. 666. It was not error to overrule the demurrer.

The refusal of the court to give appellant's tendered instructions Nos. 9, 10, 17, and 21, and in giving instructions Nos. 3, 4, 23, 24, 38, and 39, and that the damages assessed by the jury were excessive, are the causes assigned for a new trial.

A brief reference to instruction No. 9, refused, is sufficient to indicate its subject. If appellee boarded the street car intending to ride thereon without paying any fare, and without offering or intending to offer to pay any fare, the relation of carrier and passenger did not exist, and appellant owed him no duty other than not to willfully injure him. We deem it sufficient to say that the subject of this instruction was fully and correctly covered by instruction No. 10 given by the court on its own motion. The instruction given is in line with the rule announced in the following cases: Citizens' Street Railroad Co. v. Jolly, 161 Ind. 80, 67 N. E. 935;Indianapolis Traction & Terminal Co. v. Klentschy, 167 Ind. 598, 79 N. E. 908, 10 Ann. Cas. 869; Hall v. Terre Haute Electric Co., supra; Clark v. Southern Ry. Co., 69 Ind. App. 697, 119 N. E. 539;Malott v. Weston, 51 Ind. App. 572, 575, 98 N. E. 127; Indianapolis Traction & Terminal Co. v. Lawson, supra; Ohio & Mississippi Ry. Co. v. Craucher, supra.

The uncontradicted evidence showed that the street car upon which appellee was riding at the time of the collision stopped at Kirby avenue and Beacon street when and where appellee entered the car and was carried down Kirby avenue onto Madison street, where it turned north along Madison, stopping near the Big Four tracks while a train on that road passed. Then the car proceeded across these tracks and onto the tracks of the Lake Erie, where the collision occurred. Appellee testified that he had the car fare in his hand ready to turn over to the conductor, who hurriedly passed by him without an offer to collect it. The conductor testified that he did not collect the car fare and that appellee did not offer to pay it. There was no evidence of refusal to pay fare.

It is not error to refuse an instruction, although a correct statement of the law, when the subject thereof is fully covered by instructions given. Public Utilities Co. v. Iverson, 187 Ind. 672, 681, 121 N. E. 33;Yetter v. Yetter, 185 Ind. 206, 110 N. E. 195;Breadheft v. Cleveland, 184 Ind. 130, 136, 108 N. E. 5, 110 N. E. 662;Ginn v. State, 161 Ind. 292, 68 N. E. 294;Lake Erie, etc., R. Co. v. Howarth, 73 Ind. App. 454, 124 N. E. 687, 127 N. E. 804.

Appellant insists that the court erred in refusing to give instruction No. 10. From appellant's points and authorities it would have us treat this instruction as proceeding upon the theory that liability for injury caused by the concurring negligence of two tort-feasors is joint and several. However, if the action be against one only, that one would not be protected by the concurring negligence of the other; or where, as here, the action is against both, the liability is joint. But if the relation of carrier and passenger did not exist between appellant and appellee, then appellant would not be liable to appellee, although not in the exercise of due care. Our disposition of instruction No. 9 makes it unnecessary for us to further consider the passenger part of this instruction. Without stopping to recite the evidence...