Union Traction Co. v. Berry

Lairy, J.

— Appellee, as administrator of the estate of Charles Elliott, recovered a judgment in the trial court for damages resulting from the death of said Elliott, which he alleges was caused by appellant in the operation of one of its cars.

The record shows that Elliott was a passenger on one of appellant’s street cars' in the city of Muncie at the time he received the injury which caused his death. The car on which he was a passenger was operated on a track which extended across, a bridge of White river, and which was constructed so close to the girders as to leave only a narrow space between the superstructure of the bridge and the side of the car passing over the bridge on said track. The car on which he was riding was an' open car with cross seats extending entirely across the car and with a running board along the right side. When he boarded the car he took a standing position on the rear platform, and as the car approached the bridge he decided to change his position and to occupy one of the cross seats. In attempting to do so, he stepped from the rear platform to the running board when the car was close to-the bridge and, while on the running board attempting to enter a seat, his body came in contact with the superstructure of the bridge, causing him to be knocked from the running board and killed.

The complaint alleges that the space between the superstructure of the bridge and the side of a passing car was not sufficiently wide to permit the decedent and other passengers on the car to pass between the same, which fact was well known to the defendant. It is not alleged that such condition was due to any negligence or want of proper care on the part of appellant in the *517 construction of either the bridge or the tracks. The negligence imputed to appellant by the complaint is charged in the language following: “Plaintiff further says that defendant was negligent and careless in. the operation of said car at said time and place in this, to wit: That the defendant company ran said car in such close proximity to said post and structural work of said bridge as to endanger the lives and limbs of the decedent and other passengers while riding on defendant’s said cars; that the defendant negligently and carelessly failed to give the decedent any warning of any kind, and of the car’s approach to said bridge, and of the danger of colliding with said posts and girders.”

By the answer of general denial, an issue of fact was formed as to the negligence of appellant, which v/as submitted to the jury to be decided. Appellee asserted that, in the discharge of the duty to exercise due care for the safety of appellee’s decedent, it was necessary to warn him of the danger which threatened him and which he was approaching, and that appellant failed to take such precaution. This was denied by appellant. This presented an issue of fact which the jury was required to decide from a consideration of all the surrounding conditions and the attendant circumstances as disclosed by the evidence. The evidence shows without dispute that no notice was given to appellee’s decedent of the approach of the car to the place of danger described. This narrows the issue of fact thus presented to the single question: Under the existing conditions and the attending circumstances as shown by the evidence, was it incumbent on appellant to take the precaution of warning appellee’s decedent of the car’s approach to the bridge in order to measure up to the standard of care imposed on it by law? If the jury determined that the standard of care imposed required the exercise of such precaution, under the conditions and *518 circumstances shown, this established the negligence of appellant.

As bearing on this question there was evidence to show that the track was so close to the side of the bridge as to expose persons on the running boards or passing cars to the danger of coming in contact with the superstructure of the bridge, and that such danger was known to appellant and its employes; and that such danger had been recognized by such employes in stopping cars before entering the bridge and requiring passengers standing on the running board to get inside the car; and in some instances, when there was not room inside the car, requiring passengers standing on the running board to alight and walk across the bridge after which they were permitted again to board the car. There was also evidence from which the jury could have properly inferred that appellee’s decedent knew of the dangerous condition, and knew that the car was close to the bridge when he stepped from the platform to the running board. On this point there' is evidence that Elliott had lived on West Jackson street where he kept a grocery for about four months immediately preceding his death, and that it was necessary for him to cross the bridge, where he was afterward killed, every time that he went into the business section of the city; that he had crossed this bridge almost daily and sometimes twice a day during the time he had lived there, frequently going on the street ear, but generally using his delivery wagon. The evidence further discloses that the car on which Elliott was riding was stopped just prior to the accident with its front end from six to twelve feet west of the entrance to the bridge, for the purpose of receiving passengers. It is undisputed that when the car started from this point it moved up an incline to the entrance of the bridge at a slow rate of speed; that Elliott was on the rear platform of the car facing the bridge; that no one was on *519 the running board except the conductor; that after the car started the conductor, after looking back to see that no one was on the running board, stepped up into the car and began collecting fares; that he did not again look back before the accident, and that he gave no warning of the danger.

1. From a consideration of the conditions and circumstances disclosed by the evidence, the jury was required to decide whether a person of reasonable prudence, occupying the position of conductor of the car, would have regarded it necessary or prudent, in the exercise of reasonable care for the safety of the passengers, to give a signal or warning of the danger. If, in the light of the evidence, the jury believed that the exercise of due care would have dictated such a precaution to a person of reasonable prudence so situated, then it was justified in finding that the conductor was negligent in failing to observe it; but, on the other hand, if the jury decided that the exercise of the reasonable care under the conditions and circumstances shown would not have dictated such a course to a person of ordinary prudence, then the appellant should have been acquitted of the charge of negligence. This presented a pure question of fact for the jury to decide, and it was not the province of the court, by any instruction or otherwise, to assume or indicate that the conduct of the defendant as disclosed by the evidence either did or did not measure up to the standard of care imposed by law.

As bearing on the issue of negligence, the court gave the following instruction: “If you find from the evidence in this case that on and about the 23rd day of May, 1914, the defendant was a common carrier of passengers, then I instruct you that it/was held to the highest degree of care and diligence for the safety of passengers consistent with the mode of conveyance employed, and that the omission of the defendant to exer *520 cise the highest degree of practicable care constituted negligence on its part.”

*521 5. In submitting the determination to a jury of a question of negligence, which is a mixed question of law and fact, the court is required to define the duty which the law imposes. This duty is defined by the law as “due care,” “ordinary care,” or “reasonable care,” which terms are regarded by the courts as having the same significance. It is also the duty of the court to state the rule fixing the stándard of care which will measure up to the duty imposed by law. The court should then leave it to the jury to decide whether the acts and conduct of the defendant in respect to the matter before the court measures up to the standard of care fixed by the law. In defining the duty and fixing the standard of care by which the jury is to measure the conduct of the defendant, the court does not consider the facts of the particular case. The duty is the same under all relations, and the standard of care which will measure up to the duty in all cases is such care as a person of reasonable or ordinary prudence would exercise in view of all the conditions and circumstances as disclosed by the evidence in the particular case. It is for the jury to consider the conditions and circumstances disclosed by the evidence in determining what action should have been taken or avoided, what precautions should have been employed, and what course of conduct should have been pursued in order to measure up to the duty of “due care” which the law imposes. In determining this fact *522 the jury applies the standard furnished by the court, which is, What would a person of ordinary prudence have regarded as reasonably necessary or proper under the circumstances shown ?

6. 1. It has been frequently said that ordinary care requires that the acts of care employed and the precautions used must be commensurate to the danger involved under the circumstances of the particular case. Upon this proposition reasonable minds could not well differ. In a recent decision by this court it

*520 2. 3. 4. By the first part of this instruction, preceding the conjunction “and,” the court undertakes to define the duty which the law imposes on appellant as a carrier of passengers, and by the latter part the court attempts to direct the jury as to the application of the rule to the case on trial. Objection is made to this instruction on the ground 'that it invades the province of the jury, the obj ection being specifically directed to the latter part, but this part is so closely connected in meaning with what precedes it' as to require a consideration of the instruction as a whole. By this instruction the court told the Sjury, in substance, that the law imposed a different and ■a higher duty on carrier's of passengers with reference ¡to the exercise of care than rested on persons or cor- / porations sustaining other relations involving the exerI cise of care. In the case of Bedford, etc., R. Co. v. Rainbolt (1885), 99 Ind. 551, the court said: “The rule that there may be degrees in negligence has long ago been discarded in this state, and when it is said that an occurrence came about through the slight negligence or gross negligence of another, it is, in either case, nothing more than saying that such person was negligent.” Negligence is the neglect or violation of the duty to use care. If there can be no degrees of negligence, it must follow that there can be no degrees of duty. Duty is an absolute term. The law requires nothing more than duty; it will excuse nothing less. The duty to exercise care for the safety of another arises as a matter of law out of some relation existing between the parties, and it is the province of the court to determine whether such a relation is shown as gives rise to such duty. In determining whether the relation shown gives rise to a duty to use care, the court decides a pure question of *521 law. This question cannot be submitted to a jury. Where a duty to exercise care exists, it is always the same regardless of the nature of the relation out of which it arises. It cannot be said that the duty to use care which arises out of the relation of carrier and passenger differs in kind, character, or degree from the duty which arises out of the relation of master and servant, or out of any other relation which imposes the legal duty to use care. *522 was said: “But ordinary care ebbs and flows with the danger to be fairly anticipated by a man ,of reasonable prudence from the circumstances and conditions involved in each case.” Louisville, etc., Traction Co. v. Walker (1911), 177 Ind. 38, 97 N. E. 151. It may be true, as matter of fact, that the acts of care and precaution which ordinary prudence would suggest, and which would be regarded by a jury as reasonable under circumstances indicating little danger, might be regarded as entirely inadequate under circumstances which would disclose the employment of dangerous agencies involving great danger to life and valuable property; but, in all cases and under all circumstances, it is for the jury to determine the character and the extent of the danger involved, and the amount of care and caution which reasonable care requires in guarding against such danger. The quantum or amount of care required to measure up to “reasonable care” under the circumstances of each particular case is a matter peculiarly within the province of the jury. The quantum of care, the safeguards to be used, the precautions to be observed, the care and foresight to be exercised in each case, must be as ^variable as the facts involved in different cases are various. It is not practicable for a court to fix and declare as a matter of law the quantum of care or the degree of care that should be exercised under *523 the conditions and circumstances peculiar to any special case; that duty rests with the jury to be performed under proper instructions from the court.

7. The use of such terms as “slight care,” “great care,” “highest degree of care,” or other like expressions in instructions as indicating the quantum of care the law exacts under special conditions and circumstances, is misleading, and when so used they constitute an invasion of the province of the jury, whose function it is to determine what amount of care is required to measure up to the duty imposed by law under the facts of the particular case. The law imposes but one duty in such cases, and that is the duty to use due care; and the law recognizes only one standard by which the quantum of care can be measured, and that is the care which a person of ordinary prudence would exercise under like circumstances.

2. The court is of the opinion "that the language of which appellant complains invades the province of the jury. If the words “highest degree of care practical” are given any significance at all, they must mean, as applied to this case, that the conductor was required to possess and exercise something more than ordinary judgment, ordinary foresight, ordinary prudence and ordinary care to prevent the injury which happened. It has been already stated in this opinion that the duty imposed by the law to use due care is absolute, and is the same under all relations which give rise to a duty to use care. The relation of carrier and passenger does not differ from other relations in this regard. This has been recognized by the courts of this state in holding that a carrier is required to use only ordinary care in keeping its stations and platforms safe for the use of passengers, and in providing facilities for boarding and leaving trains. Louisville, etc., Traction *524 Co. v. Walker, supra; Pennsylvania Co. v. Marion (1885), 104 Ind. 239, 3 N. E. 874.

8. If greater precautions are required to protect passengers while in transit, it is because the conditions and circumstances surrounding them are different and involve more danger, and not because of the existing relation. As has been said, the surrounding conditions and attending circumstances, as well as the danger involved, present questions for the consideration of the jury in determining what precautions reasonable care required under the facts disclosed in the particular case. This presents a question of fact for the jury, and not one of law for the court. In view of the reasons here presented the court is impelled to disapprove the rule stated in the cases of Bedford, etc., R. Co. v. Rainbolt, supra; Louisville, etc., R. Co. v. Snyder (1889), 117 Ind. 435, 20 N. E. 284, 3 L. R. A. 434, 10 Am. St. 60, and both of those cases are overruled as to the point here involved. In numerous other opinions by this court and the Appellate Court language may be found giving expression to the thought that more than due care or ordinary care was required under certain conditions. This may be true as a matter of fact, but it is not generally true as a matter of law. The court should not tell the jury as a matter of law that a defendant is required to exercise more than ordinary care. What precautions ordinary care required under the circumstances shown in the case on trial should be submitted to the jury as a question of fact.

In view of the importance of the question, the court has felt justified in discussing it at some length and giving its reasons in some detail. Not because the question is new, but because our opinions seem to be somewhat confused and conflicting. -

*525 9. *524 If the conditions and circumstances disclosed by the evidence were of such a character as to show negligence *525 on the part of defendant so clearly and conclusively as to justify this court in saying that the verdict, could not have been different in the absence of the erroneous instruction, then the court might decline to reverse the judgment on the ground that it was clearly right, and that the error was not prejudicial; but, under the evidence in this case the question of defendant’s negligence was so close that the judgment of the jury might have been influenced either way by the slightest indication of the views of the court on the subject. In the light of the evidence it is impossible for this court to say that the error in this instruction did not influence the verdict.

In view of the conclusion reached, other questions which may not arise on a second trial are not considered.

The judgment is reversed, with instructions to sustain appellant’s motion for a new trial.