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Citizens Street Railway Company v. Twiname.

•which neither the debtor nor his representatives ever had any interest, legal or equitable.

A distinguishing element in the determination of cases of this character is, whether the one wlio.se life is insured so contracts himself to pay the premiums that an action could be maintained against him by the creditor for that amount. If such a contract is shown, then the policy is to be regarded as a collateral security, and the debtor is entitled to it upon the extinguishment of the principal debt; while, on the other hand, if the creditor pays the premiums, and the debtor is under no obligation to repay them, the right of the creditor is absolute. Frcme v. Brade, 2 Do Gex & J. 582; Knox v. Turner, Law Rep., 5 Ch. App. 515; Gottlieb v. Cranch, 4 De G., M. & G. 440; Godsal v. Webb, 2 Keen, 100.

As has already been seen, the debtor neither paid nor was he under any obligation to pay the premiums.

Within all the rules, therefore, the appellant became the absolute owner of the policy, without any outstanding equity in the debtor or his representative, until such payment was made or tendered according to the, contract.

Judgment reversed^ with costs. ^ A,

Filed June 23, 1887; petition for a rehearing overruled Nov. 30, 1887.

No. 11,974.

Citizens Street Railway Company V. Twiname.

Ill oS. 161 88

Negligence.Common Carrier.—Street Railway Company.Skill and Cart 1161 87 Required.—A street railway company is a common carrier of passengers, ul 58T with duties and responsibilities analogous to those of a railway com- U65 702 pany, and is required to exercise the highest degree of care and skill in the transportation of passengers, by providing suitable tracks, rolling stock, etc., keeping pace with science, art and modern improvements in their application to such transportation.

Citizens Street Railway Company r. Twinuue.

Same.Defective Tracks.—A street railway company is guilty of negligence when it attempts to run its cars over a palpably defective place in its. track, when by the use of such increased vigilance and care as a re practicably available the safety of its passengers is not well assured.

Same.Implied Invitation to Passengers.Contributory Negligence.—When a duly equipped car is placed upon a street railway track, under circumstances indicating that it is ready to receive passengers and about to proceed on its way for their transportation, an invitation to all suitable persons to enter and become passengers is implied, and the acceptance of such an invitation can not be held to be contributory negligence on the part of a passenger, although he may have knowledge that portions, of the track over which he is to be carried are defective, he having a right to presume that all necessary precautious have been taken to securehis safety.

Same.Assumption of Risks.Pleading.Answer.—In an action against a common carrier for negligence in its transportation of passengers.where an agreement on the part of the plaintiff that he will assume all risks, is relied upon as a defence,it must be specially pleaded.

From the Marion Superior Court. H. C. Allen and F. Winter, for appellant. B. Harrison, W. H. H. Miller and /. B. Elam, for appellee.

Niblack, J.—This was an action by Louisa B. Twiname against the Citizens Street Railway Company to recover damages for injuries alleged to have been sustained by her while riding on one of the company's cars on the 7th day of May, 1883. The answer was in general denial.

There was evidence tending to show, that at the time the injuries complained of were received the plaintiff resided on Massachusetts avenue, in the northeastern part of the city of Indianapolis; that, on the morning of the day named, she came down on an errand to a wholesale business house on South Meridian street near the union depot; that, after completing her business with the wholesale house, she went across to a point nearly opposite on Illinois street, where she found a Massachusetts avenue street car, belonging to the street railway company, standing on the track, headed in a northern direction, which was the direction in which she Citizens Street Railway Company r. Twinarae.

wished to go on her return to Massachusetts avenue; that she entered the car in question, with other passengers, and, after depositing her car fare in the box provided for that purpose, took her seat; that the car soon started northward along Illinois street, where in a short time it came to a place at which employees of the company were digging under and repairing the track; that, at that point, the car was run off or precipitated from the track, by means of which the plaintiff was thrown heavily against one of the seats and then to the bottom of the car; that, sick and faint, she was assisted out of the car; that she was then about to seek other means of conveyance home; that one of the company's employees thereupon insisted that she had better wait until the ear .should be replaced upon the track, as it would be in a short tune, when she could continue on her journey in the same -car; that she did so wait for a short time, and until the ear was replaced upon the track, when she re-entered it and took y seat; that, after proceeding a short distance, the car again ran off the track, as a result of which she was again thrown heavily down; that on reaching home the plaintiff was in much pain and ascertained to be severely bruised.

There was also evidence tending to show that the plaintiff either must have known, or could easily have seen, that the track was torn up and being repaired at the places at which the car ran off.

There was likewise some evidence tending to prove, that when the plaintiff was about to re-enter the car after it first ran off the track, one of the company's employees warned her not to do so until after it had passed the place at which it went off the second time, and that she refused to heed the warning, but as to that the evidence was seriously conflicting.

The court trying the cause at special term, on its own motion, gave the jury a series of instructions, the fourth and eighth of which were as follows:

"4. A street car company is a common carrier, and, while it is not an insurer of the safety of its passengers, it is bound Citizens Street Railway Company v. Twiname.

to exercise the highest degree of skill and foresight for the safe carriage of such passengers upon its cars; and this care and foresight must extend not only to the running of its cars, but also to the construction and repairs of its track, and for injuries caused to a passenger, by reason of failure to exercise such skill "and foresight, it is liable to such passenger, provided such passenger was not guilty of any negligence directly and materially contributing to produce such injuries."

"8. Again, it does not necessarily follow that a passenger is guilty of negligence in getting upon a car, even if it be proved that such passenger knew that the track was unsafe. For example, if the car upon which the plaintiff was riding at the time of the accident in controversy was standing upon the track, and she and others Were permitted to get on and deposit their fares, this may be considered as sufficient evidence, in the absence of evidence to the contrary, of an invitation by the company to her to take passage, and if she availed herself of such invitation she can not be deemed guilty of negligence in so doing merely from the further fact, if such is the fact, that she knew the track was being replaced or repaired, and was in a dangerous condition ; for shehad a right to presume, in the absence of knowledge to the contrary, that the defendant had used, or would use, due care to avoid the danger to passengers incident to the dangerous condition of the track—that is, such care as a person of the highest degree of skill and foresight, with knowledge of all the existing facts and circumstances, would probably have used, in view of such dangers, to guard against accidents to passengers by reason thereof. But if the plaintiff knew that there was a dangerous place in the track, and was warned by the employees of the defendant not to get in the car until after it had gotten over such place, but she persisted, in spite of such warning, in getting in and taking the risk, and after so getting in she received the injuries of which she comCitizens Street Railway Company v. Twiname.

plains, then she must be deemed guilty of contributory negligence, and can not recover."

A verdict and judgment for the plaintiff followed, and the judgment thus obtained was affirmed at general term.

Questions were reserved, and have been elaborately presented, upon the instructions set out as above.

A railway company is a common carrier of passengers as well as of freight. A street railway company is also a common carrier of passengers, with duties and responsibilities entirely analogous to, and substantially the same as, those of a railway company in the carriage of passengers. Both are railway companies within the usual meaning of that term, and the same general rules and degree of care in the transportation of passengers must be observed by each. Thompson Carriers of Passengers, 26, 442; Madison, etc., R. R. Co. v. Taffe,S7 Ind. 361; Hutchinson Carriers, sections 500, 501, 502, 503, 504.

Carriers of passengers are required to exercise the utmost skill and foresight in the performance of their duty as such carriers. See 1 Lacey Digest of Railway Decisions, 412, paragraph 99, and authorities cited; also, Terre Haute, etc., R. R. Co. v. Ruck, 96 Ind. 346, and Bedford, etc., R. R. Co. v. Rainbolt, 99 Ind. 551.

This is the equivalent of requiring that the highest degree of care and skill shall be used in the transportation of passengers as the rule is stated by many of the decided cases. See, also, Lacey Digest, and the cases there cited.

Railway companies are bound to provide suitable tracks, rolling stock, and all other agencies required by the business which they assume to transact, and in this respect they must keep pace with science, art and modern improvements in their application to the transportation of passengers. Hutchinson, supra, sections 524 and 529; Cleveland, etc., R. R. Co. v. Newell, 104 Ind. 264 (54 Am. R. 312); Louisville, etc., R. W. Co. v. Jones, 108 Ind. 551.

Any neglect of these requirements which results in au injury

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