Union Traction Company of Indiana v. Sullivan

• Decision Date: 28 November 1905
• Docket Number: 4,997
• Citation: 76 N.E. 116,38 Ind.App. 513
• Parties: UNION TRACTION COMPANY OF INDIANA v. SULLIVAN
• Court: Indiana Appellate Court

76 N.E. 116

38 Ind.App. 513

UNION TRACTION COMPANY OF INDIANA v. SULLIVAN

No. 4,997

Court of Appeals of Indiana

November 28, 1905

Rehearing denied January 26, 1906. Transfer denied June 29 1906.

From Randolph Circuit Court; J. W. Macy, Judge.

Action by Martin Sullivan against the Union Traction Company of Indiana. From a judgment on a verdict for plaintiff for $ 1,000, defendant appeals.

Reversed.

Gilbert R. Call, James A. Van Osdol and Engle, Caldwell & Parry for appellant.

George H. Koons and Benjamin F. Marsh, for appellee.

OPINION

MYERS, J.

Appellee instituted this action against appellant to recover damages for personal injury. The action was begun in the Delaware Circuit Court, and on change of venue, was sent to the Randolph Circuit Court, and there tried before a jury, resulting in a verdict for appellee and judgment on the verdict.

This cause was tried upon an amended complaint in one paragraph, in which it is averred that appellant is the owner of and engaged in operating an electric street railway in the city of Muncie, and suburbs thereof, and that one of its lines crosses a bridge over White river, on which line it used what is known as open, summer cars; that on August 29, 1901, appellee was a passenger on one of such cars, and while riding on the running-board thereof collided with a post forming a part of the upper structural work of said bridge, and was knocked off and injured. The complaint alleges negligence in running said cars in such close proximity to said post as to endanger the life and limbs of passengers so riding; that appellee did not know of the danger of colliding with said post and was not warned by appellant or anyone else of the danger therefrom; that the car was filled with passengers, leaving the running-board the only place for appellee to ride at the time of boarding the car; "that by reason of the negligence of the defendant, as aforesaid, plaintiff's body struck the iron post on the southwest end of said bridge with great force and violence, causing him to lose his footing upon said car and fall off upon the girders, ties and rods at the side of and on said track and against said car, whereby plaintiff was greatly and painfully injured and suffered a long, deep cut and bruises on the left side of his head, a painful cut and bruise on his left shoulder, a fracture of the eighth rib on the left side, and numerous painful bruises upon various parts of his body, and suffered a severe shock to his entire system; that by reason of said injury and the suffering and pain consequent therefrom, plaintiff has been damaged," etc. Appellant answered by general denial.

I. Appellant assigns as error in this court the overruling of its motion for judgment on the interrogatories and answers thereto, notwithstanding the general verdict. There were 158 interrogatories submitted to the jury, which they answered and returned with their general verdict. By this great number of interrogatories substantially the following facts are found: Sometime before August 29, 1901, the day appellee received his injury, a bridge across White river had been constructed, and from the time of its construction until the day of the accident it had been maintained by Delaware county or the city of Muncie, and not by appellant. It was so constructed and maintained that the center portion of the same was used as a wagonway across said river, and on either side of this wagonway at the entrance of the bridge from the city of Muncie were upright iron or steel posts about thirty feet high, forming part of the structural work thereof. On the west side of this wagonway and from the iron or steel posts said bridge was extended, and this extension was used by appellant for its street car tracks in crossing the river with its cars. On said August 29, and for ten or twelve years prior thereto, appellant had been engaged in operating street cars by electricity in and through the streets of the city of Muncie and over this bridge, and on said day, at about 9 o'clock in the evening, appellee, being in the city of Muncie, desired to go to the fair grounds, the place where he was then engaged in taking care of horses, and with a companion boarded one of appellant's cars, No. 107, at a point in the city of Muncie, for the purpose of being carried as a passenger to his destination, which was across the bridge. Said car No. 107 was one used by appellant and run over its line from the city of Muncie across the bridge and to the fair grounds. Said car was one known as an open, summer car, a little over twenty-nine feet in length, having a vestibule in each end, the front vestibule used and occupied by the motorman, and a general passenger apartment, divided into eight spaces by posts, about two inches thick, on either side, extending from the bottom of the car to and supporting the roof, and seats extending across the car between the posts. On each side of the car was a running or foot-board extending almost the entire length of the car, and used for the convenience of passengers in their ingress to and egress from the car, and for the convenience of appellant's employes in charge thereof. This foot-board was about seven inches wide and about one foot and ten inches below the floor of the car, and its outer edge about nine inches from the edge of the car floor. When appellee and his companion boarded the car the same was filled with people, some standing between the seats, and the rear vestibule filled by people standing therein, the motorman being the only person occupying the front vestibule. It was customary at the time of appellee's injury, when the cars were crowded, for passengers to stand in the front vestibule and between the seats in the main passenger compartment when such seats were filled, and it would have been possible for appellee to stand between the seats of this car or in the front vestibule. Appellee and his companion boarded the car a little to the rear of the center of the same, and appellee, after looking for a seat, took an erect and upright position directly opposite one of the upright posts and stood on the running-board with his back in the direction the car was moving, and with his right arm around one of such upright posts, his companion assuming a position standing on the running-board, with his left arm around one of the upright posts of the car, the two facing each other, which position they occupied, carrying on a conversation between themselves from the time they boarded the car in the city of Muncie until they reached the bridge, and appellee's head, near his left ear, and his left shoulder and arm came in contact with said iron or steel post, and he was knocked off of the car and injured. Appellant gave no warning of the car's approach to the bridge, nor was any warning given by any one to the knowledge of appellee. It is also found by the jury that appellee could have leaned in and between said upright posts or stood with his body against and parallel with said car and erect and would have escaped injury. Appellee by reason of said conversation was not unconscious of the general progress, course and location of said car, nor of the ordinary happenings and occurrences in and about the same, and had he been facing the front or watching the general progress, course and direction, and the manner in which the car was running he could have observed the bridge before he was injured; but there was no evidence as to the distance a person of ordinary eyesight could see the bridge before the car entered it. The space between the floor of the car and the structural work of the bridge was thirteen and three-fourths inches, and at the time of the injury the car on which appellee was a passenger was moving at the rate of about twelve miles per hour; and had appellee been standing erect upon said running-board and neither leaning toward nor from the structural work of the bridge he would have come in contact with the iron or steel posts. At that time, and each year for several years prior to the day of this injury, fairs, and occasionally other public entertainments, were held at said fair grounds, and frequently passengers on cars operated on this line, including the one on which appellee was riding, were permitted to and did stand on the running-boards thereof. At the time appellee was injured there were five or six persons on the running-board of the car on which appellee was standing. Appellee had been a resident of the city of Muncie for about ten or twelve years prior to the time of receiving the injury, and knew of the bridge and the general manner of its construction, and knew that in order to reach his destination that evening he would pass over it, having theretofore crossed the bridge in appellant's cars. At the time appellee was injured the car was brilliantly lighted with a number of electric lights and was equipped with a lighted headlight on the front end thereof. Both sides of the car were open and unobstructed, except for its upright posts, and appellee was the first passenger ever injured by coming in contact with the iron structural work of the bridge. On the evening of the injury a person upon the car observed appellee's position and that he would likely come in contact with the bridge, called to appellee in substantially the following words: "Look out, stranger, the bridge will hit you," but appellee did not hear said warning. Appellee was not warned by the motorman or the conductor of the car's approach to the bridge. Appellee at the time of his injury was thirty-three years old and was earning $ 12 a week, and on account of his injury was unable to work at his usual occupation for a period of six weeks.

It has been a number of times held by this court, and appellant concedes, that it...