Union Traction Co. of Indiana v. Berry

• Citation: 188 Ind. 514,124 N.E. 737
• Decision Date: 07 November 1919
• Docket Number: No. 23230.,23230.
• Parties: UNION TRACTION CO. OF INDIANA v. BERRY.
• Court: Supreme Court of Indiana

188 Ind. 514

124 N.E. 737

UNION TRACTION CO. OF INDIANA

v.BERRY.

No. 23230.

Supreme Court of Indiana.

Nov. 7, 1919.

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

On petition for rehearing. Rehearing denied, and former opinion affirmed.

For former opinion, see 121 N. E. 655.

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

LAIRY, C.J.

And afterwards, to wit, on the 7th day of November, 1919, come the parties by counsel, and the court, being advised in the premises, overrules the petition for a rehearing heretofore filed herein by appellees on the 29th day of March, 1919, with an opinion pronounced by LAIRY, C. J., which opinion is in the words and figures following, to wit:

In the adoption of the original opinion the court acted advisedly with full knowledge of the great current of authority with which it is apparently in conflict. On petition for rehearing, able briefs have been filed in which authorities from this state and from other states are arrayed and discussed. It must be conceded that the cases generally state the rule to be that carriers of passengers are required to use the highest degree of care practicable; but we cannot think that the courts by the use of such language intended to state that the law exacts a different standard of duty in cases where the relation of carrier and passenger exists from that which it exacts in cases where other relations are shown which give rise to a duty to use care. If it was the purpose to state a distinct standard of duty exacted by law, it is certain that no court has ever undertaken to define it. The courts have defined the standard of “ordinary care” as “such care as a person of ordinary prudence would use under the facts, circumstances, and conditions disclosed by the evidence in a particular case.” Under this definition, the party owing the duty to use ordinary care must take into consideration the character and extent of the dangers incident to the business in which he is engaged, and he must regard the conditions under which the thing is done and the circumstances which surround and attend it; and, in view of the nature of the act, undertaking, or business, the dangers incident thereto, and the surrounding conditions and attendant circumstances, he must foresee every danger that a person of reasonable foresight would anticipate, and he must take every means of guarding against such dangers that reasonable judgment and prudence would suggest, and, in case he fails to do an act or to observe a precaution which would have been done or observed under like conditions by a person of ordinary prudence, he fails in that particular to measure up to the standard of duty expressed by the term “ordinary care.”

The duty to use ordinary care requires the party on whom the duty rests to consider the character of the act, undertaking, or business in which he is engaged and the probable dangers incident thereto, as well as all other existing conditions and circumstances, and in determining the means to be used, the precautions to be adopted, and the care to be generally exercised in view of the probable dangers and the surrounding circumstances, he is required to exercise such intelligence, foresight, judgment, and prudence as a person possessed of ordinary intellectual endowments would exercise in doing the same thing under like conditions and circumstances. This being true, any standard of duty which would exact more than ordinary care would require more care than a person of ordinary intellectual endowments would be capable of exercising.

It is the duty of the jury to determine, as a question of fact in each case, whether the conduct of the party on whom the duty rests, measures up to the standard of ordinary care as defined by the law. In cases where the act, undertaking, or business out of which the injury arises is one involving great danger to life or valuable property by reason of the dangerous character of the machinery or other agencies employed, the jury may be justified in finding that a person of ordinary prudence, in view of the danger and the existing conditions and circumstances, would have made use of every reasonable means available, and would have exercised every precaution which reasonable prudence could suggest, to guard against the danger. Conduct on the part of a defendant which measures up to the standard of duty under such conditions and circumstances constitutes ordinary care and nothing more.

In cases where the danger involved is slight, and where the consequences likely to result would not affect life...