Louisville & Southern Indiana Traction Co. v. Korbe

Jordan, J. As disclosed by appellee’s complaint, appellant is a corporation duly organized. It owns and operates an electric street railroad in the city of New Albany, Floyd county, Indiana, and is a common carrier of passengers for hire over its road. It further appears from the complaint that on August 29, 1906, plaintiff became, and was accepted by appellant as a passenger on one of its cars in the city of New Albany; that she became a passenger on said car at the north terminus of the State street line in said city, and desired to be carried as a passenger on the car to the intersection of State and Spring streets in that city, a regular stopping place on signal to the conductor of the car; that as said car reached said regular stopping place, a passenger thereon gave the usual signal to the conductor to stop said car; that the conductor signaled the motorman to stop the car at said stopping place; that as the car was stopping, plaintiff arose from her seat therein, and while it was moving very slowly she stepped with one foot upon the running-board of the car, so that she could quickly alight therefrom when the car should come to a stop; that while plaintiff was so in the act of stepping on the running-board, the conductor in charge of the car negligently signaled the motorman to start the car, and in response to such signal the car was suddenly, and to the plaintiff unexpectedly, started forward with a sudden and unexpected movement thereof, by reason of which plaintiff was thrown to the ground and injured. The answer was a general denial. A trial by jury resulted in a general verdict in favor of plaintiff; also, answers to a series of interrogatories were returned by the jury. Over appellant’s motion for a new trial, judgment was rendered on the general verdict. The errors relied on for a reversal are as follows: (1) Overruling the demurrer to the complaint. (2) Overruling the motion for a new trial. [453] 1. The complaint is said to be defective, because it does not allege that the place where the accident in question occurred was one where appellant company was required to stop for the purpose of permitting passengers to alight from its cars. This criticism, under the facts alleged, is untenable; for the complaint shows that a signal was given to stop the car upon which plaintiff was a passenger at a regular stopping place. It was at the latter place that the accident happened. Since this place was a regular stopping place on appellant’s line, it certainly may be said to be one at which the company was required to stop to receive and discharge passengers from its cars. The complaint is not open to the criticism in question. 2. The court, at the request of appellee, gave the jury instruction four, which is as follows: “If a car stops at a place where cars are accustomed to stop for the discharge of passengers, a passenger desiring to alight has a right to assume that the car will remain standing long enough to enable all who desire to do so to alight safely from said car. You are instructed that stopping a reasonable time for a passenger to alight from such car is not sufficient, but it is the duty of the conductor, or other person in charge of a street-car, to see and know that no passenger is in the act of alighting from such car, or in a dangerous position, before putting the car in motion again.” 3. Counsel for appellant argue that this charge is bad, because it does not distinguish between the duty to do a certain thing and the care necessary to be exercised in performing such duty. The charge is palpably erroneous, and, in the absence of a clear showing by appellee to the contrary, the legal presumption is that the instruction operated to the substantial prejudice of appellant. Cleveland, etc., R. Co. v. Case (1910), 174 Ind. 369. 2. Appellant company as a common carrier of passengers is not an insurer of their safety. The law limits its duty in respect to its passengers to the exercise of [454] the highest degree of care. Indiana Union Traction Co. v. Keiter (1911), ante, 268, and authorities cited. In this latter case we said: “While appellant, as a common carrier of passengers, is not, under the law, an insurer of their safety, nevertheless, the law requires of it the exercise of the highest degree of care consistent with the mode of its conveyance and the practical prosecution of its business for the safety and protection of its passengers, and it is bound to continue the exercise of such care until its passengers have alighted from the cars at the end of their destination at the usual place of stopping the cars.” The instruction in question is open to the objection that it advises the jury, as a legal proposition, that it is the duty of a conductor or other person in charge of a street-car to see and know that no passenger is in the act of alighting therefrom, or in a dangerous position, before putting the car in motion. The negligence of appellant in starting its car while appellee was in the act of alighting therefrom was a question in issue to be determined by the jury. Or, in other words, the jury was to determine whether the conductor, had he exercised the care exacted by the law, might have seen or known that appellee was in the act of alighting from the car at the time it was started. The charge was equivalent to informing the jury that under all circumstances it is the duty of a conductor in charge of a street-car to see and know that no passenger is in the act of alighting from such car. Whether appellant’s conductor in charge of said car, had he exercised the care required by law, could have seen or could have known that appellee was in the act of alighting from the car at the time he put it in motion was not a question of law, but one of fact to be determined by the jury under proper instructions by the trial court. 4. Appellant next complains of instruction ten, given at the request of appellee, which advised the jury that appellant would be liable if the preponderance of the evidence established that the car upon which appellee was riding was stopped in obedience to a signal at said [455] stopping place, and that at the time she went upon the running-board for the purpose of alighting therefrom, and while she was so situated and before she could alight, but while in the act of alighting, and while using due care, appellant’s servants in charge of the car, without notice or warning to her, negligently put the car in motion, and thereby, without negligence on her part contributing thereto, threw her to the ground and injured her. It is insisted that this instruction is not pertinent to the issue tendered by the complaint. 'In this, however, appellant’s counsel are mistaken. The gist of the charge as made by the complaint is that appellant suddenly started its car, and by that act threw appellee to the ground and thereby injured her. Other questions relative to instructions are argued by appellant’s counsel, but as a new trial must be ordered, and as it does not appear that these questions will again necessarily arise, we pass them without consideration. For the error of the court in giving instruction four, requested by appellee, the judgment is reversed, and a new trial ordered.