Wabash River Traction Company v. Baker

• Decision Date: 07 June 1906
• Docket Number: 20,788
• Citation: 78 N.E. 196,167 Ind. 262
• Parties: Wabash River Traction Company v. Baker
• Court: Indiana Supreme Court

78 N.E. 196

167 Ind. 262

Wabash River Traction Company v. Baker

No. 20,788

Supreme Court of Indiana

June 7, 1906

Rehearing Denied October 25, 1906.

From Huntington Circuit Court; James C. Branyan, Judge.

Action by Ethel Baker against the Wabash River Traction Company and another. From a judgment on a verdict for plaintiff for $ 800, defendant company appeals. Transferred from Appellate Court under § 1337u Burns 1901, Acts 1901, p. 590.

Affirmed.

Sayre & Hunter and Barrett & Morris, for appellant.

Shively & Switzer and S. E. Cook, for appellee.

OPINION

Montgomery, J.

Appellee recovered a judgment for a personal injury sustained while being carried as a passenger by appellant. The only assigned error relied upon is the overruling of appellant's motion for a new trial. The grounds of the motion urged upon us are insufficiency of evidence to sustain the verdict and error of law in giving to the jury instructions two and four at the request of appellee.

Appellee was returning to the city of Wabash from Boyd park, and it was near midnight when she was hurt. The car was crowded, the seats were full, some of the passengers sitting in the laps of others, the aisles and vestibules were filled, and some boys were on the top of the car. Appellee was required to stand, until, becoming tired, she removed her jacket and, placing it upon the step leading from the rear vestibule into the car proper, sat down upon it. She had notified the conductor that she desired to get off at "South Side," a customary stopping place in the city of Wabash. As the car approached her destination its speed was slackened until it did not exceed one mile per hour, whereupon appellee descended to the lower step ready to alight when the car should come to a full stop. The power was suddenly applied, causing the car to lurch forward, throwing the standing passengers off their balance, and bunching them together, and throwing appellee against the vestibule door and out upon the ground with great violence.

Appellant's counsel argue from these facts that appellee voluntarily left a place of safety, and took a perilous position upon the car and that she is guilty of contributory negligence as a matter of law. If appellee had been furnished a customary seat within the car, this argument would impress us more favorably, but it can hardly be conceded that she was in a place safe against such perils as produced her injury, as long as she was required to stand or to occupy an improvised seat in the doorway where she was liable to be trampled by the standing passengers of the crowded car. The lateness of the hour and the unusual number on board would naturally suggest the desirability of dispatch in the discharge of passengers, and the slow speed at which the car was running would ordinarily induce a person already standing to believe that it was safe to move toward the place of exit, and we cannot say that under the circumstances shown appellee was guilty of negligence in moving down to the lower step of the car, but affirm that the question of her negligence was rightly submitted to the jury for determination. Indianapolis St. R. Co. v. Hockett (1903), 159 Ind. 677, 66 N.E. 39; Citizens St. R. Co. v. Merl (1901), 26 Ind.App. 284, 59 N.E. 491; Anderson v. Citizens' St. R. Co. (1895), 12 Ind.App. 194, 38 N.E. 1109; Citizens' St. R. Co. v. Spahr (1893), 7 Ind.App. 23, 33 N.E. 446; Chicago City R. Co. v. McCaughna (1905), 216 Ill. 202, 74 N.E. 819; Alton, etc., Traction Co. v. Oliver (1905), 217 Ill. 15, 75 N.E. 419.

Complaint is made of the giving of instruction two, which reads as follows: "The court charges you that there is a higher degree of care imposed upon street railways than upon ordinary steam railways, and if you should find in this case by the evidence, that the plaintiff was a passenger on one of defendant's cars on the night in question, returning from Boyd park, bound for her home in Wabash, and in giving her ticket to the conductor notified him that she wished to get off at a regular stopping place in said city, known as South Side, it was the duty of the defendant to carry the plaintiff safely to said stopping place, and its duty toward the plaintiff as a carrier of passengers was not discharged or ended until...