Union Traction Co. of Indiana v. Mann

• Decision Date: 14 October 1919
• Docket Number: No. 10082.,10082.
• Citation: 72 Ind.App. 50,124 N.E. 510
• Parties: UNION TRACTION CO. OF INDIANA v. MANN.
• Court: Indiana Appellate Court

72 Ind.App. 50

124 N.E. 510

UNION TRACTION CO. OF INDIANA

v.MANN.

No. 10082.

Appellate Court of Indiana, Division No. 1.

Oct. 14, 1919.

Appeal from Superior Court, Marion County; Theophilus J. Moll, Judge.

Action by Adolph Mann against the Union Traction Company of Indiana. From a judgment for plaintiff, defendant appeals. Reversed, with directions to grant new trial.

J. A. Van Osdol, of Anderson, and Joseph R. Morgan and Matson, Kane & Ross, all of Indianapolis, for appellant.

Harman J. Everett, of Indianapolis, for appellee.

ENLOE, J.

Action by appellee to recover damages for injuries alleged to have been sustained while a passenger on one of defendant's cars.

It appears from this record that on the night of March 14, 1914, near the hour of 10:30 o'clock, appellee boarded one of appellant's cars, known as its Broad Ripple car, near the corner of Illinois and Washington streets, in the city of Indianapolis, to be carried as a passenger to Broad Ripple; that thereafter said car reached the crossing of Pennsylvania and Ohio streets, and came to a stop just before reaching Ohio street, to receive passengers; that at that time plaintiff was seated in said car near the rear door as a passenger thereon; that following said Broad Ripple car was a car operated by the Indianapolis Traction & Terminal Company, and known as an East Tenth street car; that said Broad Ripple car was struck from the rear by said East Tenth street car, at said point, south of Ohio street, where it had stopped to receive passengers, and shoved forward three or four feet. That part of the complaint herein charging the negligence of appellant which caused the injury is as follows:

“Plaintiff says that the defendant, the Union Traction Company, was negligent and careless in running and managing its car at the time, and was unmindful of the danger to passengers, caused by collision; that the defendant was negligent and careless and unskillful in managing its said car and caused the said accident by which his injuries were brought about and received.”

The appellee was the only person testifying in his behalf as to how the collision occurred, and he does not seem to have been very clear upon that subject. He says:

“I could not tell whether it ran into us, or we ran into a jam-there was a jam. The car was running when it happened.”

Seven witnesses testified on behalf of appellant as to how the collision occurred. Two of them were former employés of the Indianapolis Traction & Terminal Company, and in charge of the said East Tenth street car, as conductor and motorman at time of collision-one the former employé of appellant, who had charge of the Broad Ripple car at the time of collision and one the motorman on said Broad Ripple car at the time of collision-and three passengers on said Broad Ripple car, at time of collision. The testimony of these men is each clear, unequivocal, and positive that at the time of the said collision the said Broad Ripple car had stopped and was receiving passengers, and, while so stopped, the said East Tenth street car which was following the Broad Ripple car ran into said car. The motorman on said East Tenth street car testified that he set his brakes and tried to stop, but the rails were wet and slippery and he could not stop the car; that he “slid” into the Broad Ripple car, “the front deadwood of my car bumped the rear deadwood of the Broad Ripple car.”

It further appears from the record, withoutcontradiction, that the car of appellant in question was a “pay as you enter” car, and that at the time of said collision the conductor on said car was at his regular and usual place-the rear end of said car-collecting the fares of his passengers, as they entered the car. He testified, and his testimony is not in any way contradicted or impeached, that he did not see the car approaching from the rear, and the first he knew of the collision was the jar caused by the cars striking.

There was a verdict and judgment for the plaintiff, and, appellant's motion for a new trial being overruled, it has appealed to this court, and has assigned as error the overruling of its motion for a new trial.

The motion for a new trial contained the following causes, viz.:

(1) The verdict is not sustained by sufficient evidence.

(2) The verdict is contrary to law.

(3) Error of court in giving instruction No. 9 of instructions given by the court of its own motion.

(4) Error in overruling motion made at the close of all the evidence for peremptory instruction to jury to find for appellant.

Was there sufficient evidence to sustain the verdict? If not, then it is contrary to law and should be set aside.

The appellee contends that the facts proven, together with the legal presumptions arising therefrom, were sufficient to entitle the case to go to the jury, and therefore are sufficient to support the verdict; that it being shown that appellee was a passenger on one of appellant's cars, and that he was injured while he was such passenger, without fault or negligence on his part, the doctrine of res ipsa loquitur applies, and also raises, as against the appellant, the presumption that it was negligent in some matter, and that such negligence caused the injury complained of, and that the jury were entitled to consider all the evidence in the case, in the light of such presumption.

On the other hand, the appellant insists that where an injury to a passenger on a street railway is caused by something not within the carrier's control, something in no way connected with...