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fendant is clearly right on that feature of the nature and character that it became necescase, the rulings of the court in giving or refus-, sary for him to have the immediate ating instructions relative to contributory negli

tention of a physician, and that ever since gence, even if erroneous, are harmless. 6. TRIAL - INSTRUCTIONS CONSIDERED AS A

he has suffered great pain and mental an. WHOLE.

guish. Other facts are alleged, disclosing A court in charging a jury is not required his age, occupation, good health, and condito cover all the questions or phases of a cause

tion at the time of the accident, and his in. in any one instruction, where the jury has been advised in regard to such points or questions in

ability thereafter to perform any work, etc. other parts of the charge.

The complaint closes with the demand for (Ed. Note.--For cases in point, see vol. 46, $15,000 damages. A demurrer thereto for Cent. Dig. Trial, $$ 651, 704.)

want of facts was overruled, and thereupon 7. CARRIERS-ACTIONS FOR INJURIES TO Pas appellant filed an answer in three para. SENGERS-EVIDENCE.

graphs: First. A general denial. Second. In an action against a carrier for injuries to a passenger, the prima facie case of negli

Alleging that on April 20, 1903, the plaintiff gence made out by evidence of a collision be and the Northern Pacific Railway Company tween the train upon which plaintiff was riding

entered into a special contract at Spokane, and another train owned and operated by de

state of Washington, by which the plaintiff fendant may be overcome by evidence of defendant that the accident could not have been

was entitled to ride as a second-class pas. avoided by the exercise of the highest practical senger over the lines of said Northern Pa. care and diligence on its part, and it was error

cific Railway Company from said city of to instruct that such prima facie case must be overcome by clear and explicit proof.

Spokane to Chicago, Ill., and from Chicago, 8. APPEAL-HARMLESS ERROR.

Ill., to Cincinnati, Ohio, over the lines of the Though an instruction was not strictly ac defendant, the Pittsburgh, Cincinnati, Chicago curate, the error is harmless, if it clearly ap & St. Louis Railway Company. Other lines pears from the evidence that a verdict for de

of railway over which plaintiff was entitled fendant would not have been justified.

to ride on said ticket to Nicholasville, Ky.. Appeal from Circuit Court, Cass County ;

are stated. It is then averred that "the George A. Gamble, Special Judge.

plaintiff agreed and undertook to assume all Action by George W. Higgs against the

risks of accident and damage to his person Pittsburgh, Cincinnati, Chicago & St. Louis

or property while so traveling or being carRailway Company. From a judgment for

ried over said lines of railway; that said plaintiff, defendant appeals. Transferred

agreement was in the form of a ticket, and from Appellate Court, under section 1337u, delivered to plaintiff by the said Northern Burns' Ann, St. 1901. Affirmed.

Pacific Railway Company, and was the only G. E. Ross, for appellant. Nelson, Myers evidence of his right to ride or be car& Yarlott, for appellee.

ried over said lines; that, in pursuance of

the said agreement as expressed in the JORDAN, J. On July 13, 1903, appellee ticket, the plaintiff started from said Spofiled a complaint in the Cass circuit court, kane, and was so traveling on said ticket, whereby be charged that appellant railroad and not otherwise, at the time he is alleged company was, at the time therein mentioned, to have been injured, as charged in the coma corporation owning and operating a rail plaint," etc.—wherefore defendant says the road known as the “Panhandle," extending plaintiff ought not to recover in this action. from the city of Chicago, Ill., through the The third paragraph is substantially the state of Indiana, to the city of Cincinnati, same as the second, and thereon and thereby Ohio, and that said railroad company was appellant alleged and set up as a defense to a common carrier of passengers for hire. the action that "by the terms of said contract The complaint further averred that on April the plaintiff agreed and undertook to as22, 1903, said defendant railroad company, in sume all risks of accident and damage to his consideration of the sum of $10, received the person or property while so traveling or be plaintiff, appellee herein, as a passenger over ing carried over said several lines of railits said railroad from Chicago, Ill., to Cin road." No copy of the contract or agreement cinnati, Ohio, and while on its cars, on his referred to is filed with or made a part journey, at or near the village of Kouts, in of either of the paragraphs of answer. the state of Indiana, by and through the A demurrer by appellee for want of facts negligence of the said defendant and its was sustained to the second and third paraservants in running and managing its rail graphs. The cause, being at issue upon the road and trains of cars thereon, the train on complaint and answer of general denial, was which plaintiff was riding collided with an- | | tried by a jury, and a general verdict, finding other train, which was being run and oper in favor of appellee, and awarding him dam. ated by the defendant. Plaintiff was then ages in the sum of $300, was returned by the and there and thereby, and because of such jury. Along with this general verdict, the collision, suddenly and forcibly thrown out jury returned answers to a number of inof his seat, whereby one of his ribs was terrogatories. By their answers to the latbroken, his head was bruised, spinal column ter the jury found, among other things, substrained and injured, all because of said col. stantially as follows: That the plaintiff got lision. That he was rendered senseless for upon one of the defendant's passenger trains some time, and his injuries were of such a at the city of Chicago, Ill., about midnigbt on April 22, 1903, his final destination being these two seats for the purpose of lying Nicholasville, Ky. Before he boarded said down thereon, and soon after reclining upon train, he had purchased a ticket which en- bis seat he fell asleep. After the train had titled him to ride over the defendant's rail left Chicago, the conductor in charge thereof road. This ticket was purchased by the came through the passenger car where plainplaintiff at Spokane, in the state of Wash tif was, examined his ticket, and thereupon ington, of the Northern Pacific Railway Com punched the coupon which entitled him to pany, and was a special limited second-class be carried from Chicago to Cincinnati. Atcontract ticket. Interrogatory No. 11, with ter sleeping for some time, appellee was the answer of the jury thereto, is as follows: awakened by a severe and sudden jolt, which "Interrogatory No. 11. Was the plaintiff, gave forth a "dead sound." All he appears George W. Higgs, received by the defendant | to have remembered on being awakened was at Chicago, and being carried over its rail that there was much confusion in the car, road from Chicago, Illinois, to Cincinnati, some of the ladies were screaming, and he, Ohio, April 23, 1903, under a special con- in the excitement and confusion at the time, tract in writing, signed by him and entered | made a dash for the door of the car, and was into with the Northern Pacific Railway Com- there informed by some one that the train on pany at Spokane, Washington? Answer. which he was riding and a freight train on Yes. Meredith Tyner, Foreman." Over ap- appellant's road had collided with each other pellant's motion for a new trial and for judg at a point near Kouts, Ind. He returned to ment on the special findings of the jury, the his seat, laid down thereon, felt sick, became court rendered judgment on the general very pale, great beads of sweat stood upon verdict.

his face, and he complained of being in. Appellant appeals, and assigns and argues jured, and evidence, of the fact that he was for reversal certain alleged errors of the severely injured and was suffering was aptrial court.

parent to some of his fellow passengers. The following facts appear to be clearly The conductor, on learning of appellee's inestablished by the evidence: Appellant is jury, telegraphed to Logansport to the coma corporation, owning and operating a rail- | pany's physician to attend upon appellee road extending from Chicago, Ill., through' and give him medical attention when the the state of Indiana, to Cincinnati, Ohio, and train arrived at the city. This appears to is a common carrier of freight and passengers have been done. The physician gave appellee for hire. On April 20, 1903, appellee pur some medicine and put plasters on his back chased of the agent of the Northern Pacific to alleviate his suffering. Medicine also apRailway Company at the city of Spokane, pears to have been administered to him bestate of Washington, a coupon second-class tween Logansport and Cincinnati. At the ticket, which entitled him to be carried as latter city, being unable to help himself, he a passenger from said city of Spokane to was assisted from the train, and conveyed to Nicholasville, Ky.; the latter being the home a station, where he was placed on a train to town of appellee. One of the coupons of this carry him to Nicholasville, Ky. After reacbthrough ticket entitled him to be carried as ing home, physicians were called to examine a passenger over appellant's railroad from | bim, and they discovered that one of his Chicago, Ill., to Cincinnati, Ohio. The price / ribs was broken or fractured, and that he which be paid for this through ticket was was injured in other parts of his body. He $53. The evidence does not expressly dis continued to be disabled for quite a length close the precise amount of money which of time, and was under medical treatment. appellant was entitled to receive from the That the injuries which appellee received railroad company selling the ticket for the were the result of the collision in question, distance which it carried appellee over its and that said accident was the proximate line of railway, but it is shown that it would cause thereof, is fully sustained by the evi. be entitled to receive a proportionate part dence. It is shown that the train upon which of the price for the ticket; the exact amount appellee was being carried collided with a being a matter of calculation on the arrange freight train which appellant owned and ment which it had with the railroad com was operating upon its railroad, and which pany which sold the ticket. Appellee ap at the time was in charge of its agents and pears to have started on his journey from servants. This fact is undisputed. The Spokane on Sunday night, and arrived at conductor in charge of the passenger train Chicago the following Wednesday, being | upon which appellee was being carried at April 22, 1903. On the latter day, about mid the time was introduced at the trial as a night, he boarded one of appellant's pas witness in behalf of appellant, and his testisenger trains at the said city of Chicago, in mony goes to prove that the cause of the tending to become a passenger thereon from wreck or collision was the failure of the said city to the city of Cincinnati, Ohio. engine attached to the freight train to propHe went into the ladies' car, and took a seat erly steam, and the breaking of a coupling. about the center of that coach. He appears The collision was with such great force as to bave utilized two seats, one of which was to demolish the pilot of the engine of the turned over ; that, as he was tired and sleepy passenger train upon which appellee was from the effects of his long journey, be used | being carried, and to completely wreck the caboose attached to the freight train. That loss or destruction of goods and chattels the collision in question was due to the negli- | which had been delivered by the shipper to gence of appellant is, under the evidence, the carrier for transportation under such beyond controversy. There is also an entire bills of lading. In these cases the plaintiff absence of any evidence to show that appel appears to have ignored the bills of lading lee was in any manner guilty of contributory containing a special contract under which the negligence; hence this element of the case goods were shipped, and sued on the implied may be dismissed without any further serious contract of a common carrier. The court in consideration.

these cases held that, inasmuch as the eviAppellant's counsel argue that the com dence disclosed that the goods in suit were plaint in this action is based upon an implied shipped under the terms or provisions of a contract, while, as he asserts, the jury, by special contract, consequently there could be their 'answers to interrogatories, have found no recovery by the plaintiff upon an implied that appellee was being carried at the time contract, but that the causes should have of the accident under a contract which was been based on the bill of lading, and for that evidenced by a special limited contract tick reason it was held that there was a fatal et. An examination of the complaint, how variance between the complaint and the proof. ever, fully reveals that it is not predicated These decisions, however, have no applicaon a contract, either express or implied, but tion to the case at bar. As previously statthe pleader relies wholly on a breach of duty ed, the cause of action is not based on a conimposed by law on appellant company as tract, express or implied, but sounds wholly à carrier of passengers for hire. That the in tort, and the liability incurred by the apaction presented by the complaint sounds pellant under the facts alleged in the comwholly in tort is manifest. What is averred plaint and proven on the trial is not such therein as to the consideration which appel from which it may legally exempt or relieve lee paid for his transportation as a passenger itself by contract. In Indianapolis, etc., Ry. over appellant's road is but a mere induce Co. v. Forsythe, supra, which was an action ment to the action to disclose or show his for the recovery of goods destroyed by fire right to sue as a passenger. 15 Ency, of while in transit, Judge Reinhard, speaking Pl. & Pr. p. 1124; 4 Elliott on Railroads, & ' for the Appellate Court, said: “If, then, the 1693. As a general rule, in determining liability is one from which the carrier might whether an action like this is predicated on relieve himself by contract, and such a concontract or tort, the court will look to the tract was in fact entered into, there can be nature of the action alleged in the complaint, no doubt, under the Indiana authorities, that and, if no special contract is therein set out, the action must be upon the contract, and it will construe the pleading as based on not upon the common-law liability. The conthe tort of which the plaintiff complains. tract is, of course, not conclusive as to the 4 Elliott on Railroads, 8 1694. Unless the right of recovery. After it is introduced in facts alleged in plaintiff's complaint are of evidence, it then remains to be seen from the such a character as to show that he assumed facts showing the loss whether such loss the risk, so as to be legally binding on him, was or was not occasioned by some cause or that the liability of appellant carrier is within the exception; but the burden of limited' by some special contract, the latter, showing negligence in such case is upon the if it relied upon such an agreement or con plaintiff"-citing authorities. It is true the tract, must specially plead it as a defense to evidence shows, and the jury specially found the action. Citizens' St. R. Co. v. Twiname, by their answers to interrogatories, that the 111 Ind. 587, 13 N. E. 55; 4 Elliott on Rail. ticket which appellee purchased at Spokane roads, § 1696.

was a second-class limited ticket, which enAppellant's learned counsel in his argu titled him to be carried from the latter place ment apparently travels on the assumption to Nicholasville, Ky. The respective coupons that the complaint in this action is founded of this ticket were all taken up by the railon the implied contract, and from this stand road companies operating the lines over point of assumption he proceeds to argue which appellee traveled, and at the time this that, inasmuch as the jury found by inter action was instituted the ticket was not in rogatories that appellee was being carried his possession. Neither it, nor any part over appellant's road under a special limit thereof, was introduced in evidence on the ed second-class contract ticket, which he had trial, and as to what were the special stipulapurhased at Spokane of the Northern Pacific tions, limitations, or conditions therein conRailroad Company, therefore he cannot re tained, if any, is not disclosed by the evicover in this action, and that appellant's dence. In fact, there is nothing shown by motion for judgment on the interrogatories the evidence which would authorize the as of the jury should have been sustained. In sertion that appellee was required to predsupport of this argument we are cited to a icate his cause of action upon the ticket in class of cases like Lake Shore, etc., R. Co. question, instead of basing it on the breach 7. Bennett, 89 Ind. 457, Hall v. Pennsylvania of duty imposed by law on appellant. Both Co., 90 Ind. 459, and Indianapolis, etc., Ry. the facts alleged in the complaint and those Co. v. Forsythe, 4 Ind. App. 326, 29 N. E. established by the evidence disclosed that 1138, which were actions arising out of the at the time of the collision in question the


relation of carrier and passenger for hire y for the reason that each of these paragraphs existed between him and appellant company. set up as a defense the alleged fact that, unThe purchase of the ticket in controversy der a contract or agreement entered into and appellant's accepting appellee thereon as between appellee and the Northern Pacific a passenger on its train certainly invested Railroad Company, appellant was thereby him with all of the rights of a passenger for exempted or relieved from liability of the bire. The negligence of the railroad com negligence to which appellee in his comprint pany, as shown, from which the injury re attributed his injuries. The doctrine is setsulted, was a breach of duty which it owed tled beyond dispute that where a railroad to him under the law as a passenger. Or company is under a duty to carry a passendinarily, a railroad ticket for passage is but ger, as in the case at bar, and it undertakes a mere token, receipt, or voucher, as evidence for hire or reward to perform that duty, it that the passenger has paid the required cannot by contract legally exempt or relieve fare. Where, however, in addition to its itself of liability arising out of the negli. usual form, the ticket contains some reason gence of itself or servants. Ohio, etc., Ry. able stipulation or limitation or condition Co. v. Selby, 47 Ind. 471, 17 Am Rep. 719; which has been assented to by the purchaser, Louisville, etc., Ry. Co. v. Faylor, 126 Ind. then to this extent it may be said to con 126, 25 N. E. 869; Rosenfeld v. Peoria, etc., stitute a contract. Indianapolis St. R. v. R. Co., 103 Ind. 121, 2 N. E. 344, 53 Am. Rep. Wilson, 161 Ind. 153, 168, 66 N. E. 950, 67 500; Indiana, etc., Ry. Co. v. Mundy, 21 Ind. N. E. 993, 100 Am. St. Rep. 261, and au 48, 83 Am. Dec. 339; 4 Elliott on Railroads, thorities there cited. Where the ticket con 8 1645. tains provisions which can avail the carrier

Counsel for appellant refers to Payne y. as a legitimate defense in an action by a pas

Terre Haute, etc., R. Co., 157 Ind. 616, 62 senger, founded on a breach of duty on the

N. E. 472, 56 L. R. A. 472, in support of his part of the carrier, it is its privilege or

contention that, under the agreement or conright to set up or interpose such defense to

tract set up in the answer, appellee assumed the action. We may assume that, had the

the risk of appellant's alleged negligence, ticket herein in controversy contained any

The latter case must not, however, be conprovision or stipulation which inured to the

fused with cases like the one at bar. The benefit of appellant company, the latter

plaintiff in the Payne Case was injured would have taken the necessary steps to have

while being carried by defendant railroad properly availed itself of the benefit thereof.

company over its road on a free pass. The While it is true, as previously stated, the

carriage of the plaintiff in that case was evidence does not show that appellee paid wholly gratuitous; hence the decision therein directly to appellant $10 as a consideration

has no application whatever to the case un. for his carriage over its road, still it does ap der review. pear that be purchased a through coupon

Appellant complains of certain instructicket, and that one of said coupons (the

tions given and refused. Some of these, one which was taken up by appellant com

however, were applicable to the question of pany) entitled him to be carried over its

contributory negligence; but, as heretofore railroad as a passenger for hire from Chica

said, there being an entire absence of any go, Ill., to Cincinnati, Ohio. The exact part

evidence to establish that issue against apof the purchase price which appellant was

pellant, it must follow that, as the verdict entitled to receive from the selling company

of the jury is clearly right under the evidoes not clearly appear. However, it is

dence upon that question or feature of the shown that it was entitled to receive its pro

case, the rulings of the court in giving or portionate part of the purchase price of the

refusing instructions relative to contributory ticket, and that whatever that amount might

negligence, even if erroneous, would be be was a mere matter of calculation under the

harmless. arrangement which it had with the railroad

By charge No. 3 the court, among other company selling the ticket to appellee.

things, advised the jury to the effect that, if Whether this amount was $10, as alleged in

plaintiff proved a collision of the train upon the complaint, or less, is not material to ap

which he was riding with another train pellee's recovery.

owned and operated by the defendant upon Appellant's contention that he must re

its railroad, then the presumption arose that cover secundum allegata et probata is a well

the injury was the result of some act or omisrecognized principle, which requires that the sion of the defendant, and that this presumprecovery, if at all, must be on the cause of tion must be overcome by clear and explicit action alleged in the complaint. But, under

proof, and that the burden of overcoming this rule, a plaintiff is only required to prove the presumption was on the defendant the substance of the material facts consti This instruction is criticised for several reatuting his cause of action. Terre Haute, etc., sons. It is asserted by appellant's counsel R. Co. v. Sheeks, 155 Ind. 74–93, 56 N. E. 434, that the court thereby informed the jury:

It is evident that the trial court committed First. That the occurrence of the accident no error in sustaining appellee's demurrer to was negligence per se, but the charge, how. the second and third paragraphs of answer, ever, is not open to this criticism. Second. Chat the court ignored therein the considera- | Under the evidence, we fail to recognize tion of plaintiff's right on the train. Third. how the jury would have been justified in The question of contributory negligence. returning a verdict adverse to appellee. We Fourth. That it invades the province of the have considered all of the questions present. jury by advising them that the presumptioned by- appellant, but discover no reversible must be overcome by clear and explicit proof. error; in fact, we are fully satisfied that the Fifth. That it ignores the question of prox merits of this case have been fairly tried imate cause. While the charge in question and determined in the trial court. is not strictly accurate in some respects, The judgment is therefore affirmed, especially in stating to the jury that the presumption or prima facie case made by plain. tiff must be overcome by the defendant by

(165 Ind. 597) clear and explicit proof, nevertheless, in re. INDIANA TRUST CO. v. INTERNATIONAL gard to the other objections that it ignores BUILDING & LOAN ASS'N NO. 2 certain points involved in the case, it may

et al. (No. 20,734.) be said that a court in charging a jury is (Supreme Court of Indiana. Dec. 8. 1905.) not required to cover all the questions or BUILDING AND LOAN ASSOCIATIONS-PAYMENTS phases of a cause in any one instruction, BY OFFICERS-RIGHT TO CREDIT AS AGAINST where, as in this case, the jury has been ad


The duty of the treasurer of a building vised in regard to such points or questions

association was to receive the money, which the in other parts of the court's charge. Atkin. secretary was required to pay over each day, son V. Dailey, 107 Ind. 117, 7 N. E. 902. and to pay all orders. The treasurer was grant

ed a leave of absence by the directors. SubseIt is true that, if it appears from the evi.

quently he drew his check against the funds of dence that the train upon which appellee the association to the secretary, who opened an was being carried as a passenger over appel. account with a bank in his name as secretary. lant's road collided with another train operat

The secretary made further deposits under the

account, and drew checks thereon in payment ed by it on its railroad, then, under the cir of expenses of the association and warrants on cumstances, a prima facie case of negligence, the treasurer. The association did not lose any by the aid of a legal presumption, would be

of the money transferred from the treasurer to presented against appellant from the mere

the secretary. Held, that the treasurer was en

titled to a credit to the amount of the check as fact of the collision, and the burden would against the association, though the transfer to be upon it, in order to rebut or overcome the secretary was irregular; the association this presumption or prima facie case of neg.

having knowledge of the manner in which the

transfer was made. ligence, to prove that the accident in con. troversy could not have been avoided by the

Appeal from Circuit Court, Marion County ; exercise of the highest practical care and

A. F. Denny, Special Judge. diligence on its part. Louisville, etc., R. Co.

Consolidated actions by the International v. Faylor, supra; Terre Haute, etc., R. Co. v.

Building & Loan Association No. 1 and by the Sheeks, supra; Indianapolis St. R. Co. v.

International Building & Loan Association Schmidt, 163 Ind. 360, 71 N. E. 201. But,

No. 2 against the Indiana Trust Company, nevertheless, the burden was upon appellee

as executor of N. S. Byram, deceased. From throughout the trial to maintain the affirm

a judgment of the Appellate Court (74 N. ative of the issue of appellant's negligence.

E. 633), reversing a judgment for plaintiffs, Terre Haute, etc., R. Co. v. Sheeks, supra.

they appeal, under Burns' Ann. St. 1901, 8 While it is true that this court in Louisville,

1337), subd. 3. Affirmed. etc., R. Co. v. Miller, 141 Ind. 533, 37 N. E. Quincy A. Myers, Ayres, Jones & Hollett, 343, by McCabe, J., asserted that the pre John C. Nelson, and C. E. Yarlott, for apsumption arising in favor of the plaintiff in pellants. Chambers, Pickens & Moores and a case like the one at bar “must be over. | Harding, Hovey & Wiltsie, for appellee. come by clear and explicit proof on the part of the carrier,” still, all which can properly

JORDAN, J. The International Building be said to be necessary is that the proof & Loan Association No. 2, appellee herein, made by the carrier should be such as will

filed in the office of the clerk of the Marion operate to rebut the prima facie or presuinp circuit court a claim against the estate of tive case presented in favor of the plaintiff | Norman S. Byram, deceased, itemized as on account of the accident, by showing that follows: it could not have been avoided by the exer- June 2, 1902. Cash balances as treasurer of

the association......

$1.186 48 cise of the highest practical care and dili

June 30 8. To loan.....

.... 6,000 00 gence on the part of the carrier. Indianapo

* Interest on the above loan at lis St. R. Co. v. Schmidt, supra. While it

6 per cent...................... 1,655 00 may be conceded that the instruction in con

Total.................. $8,741 48 troversy is not strictly accurate, neverthe This claim was not allowed by appellant, less, as it clearly appears from the evidence the executor, consequently it was transferred that it did not in any manner operate to mis- | to the trial docket of the Marion circuit court, lead the jury to the prejudice of appellant, Appellant appeared and filed an answer of the error in giving it was harmless. Spring. | counterclaim in five paragraphs, the first of er v. Bricker, at this term,

| which was for money laid out and expended

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