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rant," thus taking from the instruction the | pany and others. From a judgment for ordinance rate, but as the jury have found plaintiff, defendants appeal. Reversed with that the speed was six miles an hour, the directions to render judgment for appelordinance limit, this clause of the instruction lants. did not harm appellant.
There is no attempt to justify these two instructions, and they are clearly erroneous and harmful, for under them the jury are told that the failure to blow the whistle might be taken into consideration in determining the question of negligence under the ordinances.
J. A. Van Osdol, of Anderson, and Warner & Warner, of Muncie, for appellants. Frederick F. McClellan, Donald D. Hensel, and Leonidas A. Guthrie, all of Muncie, for appellees.
LAIRY, J. Appellants own and operate a street railway in the city of Muncie, Ind., For these errors the judgment must be under and by virtue of a contract and franreversed, with instructions to the court be-chise granted by said city. One of the tracks low to sustain appellant's motion for a new trial, and for further proceedings not inconsistent with this opinion, and it is so
(54 Ind. App. 438)
INDIANA UNION TRACTION CO. et al. v. GOUGH et al. (No. 8,060.)1
of appellants is located longitudinally in Kilgore avenue, one of the public streets of Muncie, and is used in the transportation of
electric street cars and also for the transportation of electric interurban cars. In March, 1908, the city of Muncie by its proper officers originated proceedings for the establishment and construction of a general sewer in such city, and such steps were there
(Appellate Court of Indiana, Division No. 2. after taken as resulted in the defining of the June 26, 1913.)
1. MUNICIPAL CORPORATIONS (8 406*)-SPECIAL ASSESSMENTS-POWER. A city does not have power to levy a special assessment in the absence of authority from the state which is limited to that expressly granted by the statute.
[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 1001, 1002; Dec. Dig. § 406.*]
2. MUNICIPAL CORPORATIONS (8 425*)-SPECIAL ASSESSMENTS-PROPERTY ASSESSABLESTREET CAR TRACKS.
The statute authorizing a city to impose special assessments on land benefited to pay expenses of constructing a sewer would not authorize the city to assess, for that purpose, the tracks and right of way of an interurban street railway located within the benefited dis
[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 1031-1034; Dec. Dig. 425.*]
3. CONSTITUTIONAL LAW (§ 70*) MENTS OF GOVERNMENT.
The courts possess no legislative power. [Ed. Note. For other cases, see Constitutional Law, Cent. Dig. §§ 129-132, 137; Dec. Dig. 70.*1
4. EMINENT DOMAIN (§ 119*)-COMPENSATION -SERVITUDE-STREET RAILWAY.
The construction of a street railway in a
city street is not an additional servitude for
which compensation must be made.
[Ed. Note.-For other cases, see Eminent Domain, Cent. Dig. §§ 304-314; Dec. Dig. § 119.*] 5. STREET RAILROADS (§ 28*)-STREETS-EASEMENT OF CITY.
The right of a street railway company to maintain its tracks and operate its cars in the street under permission from the city is part of
the public easement.
[Ed. Note.-For other cases, see Street Railroads, Cent. Dig. §§ 39-42, 44, 45, 56, 61, 6365; Dec. Dig. § 28.*]
territory to be benefited by the proposed sewer, the preparation of plans and specifications, the letting of the contract, the construction of the sewer, and the making and confirmation of assessments against the lots and parcels of land within the district benefited. A part of Kilgore avenue along and over which appellants' tracks are located is within the limits of territory described as benefited by such sewer, and an assessment was placed against the tracks and "right of way" of appellants on Kilgore avenue between Main street and First street in the sum of $304.95 for the cost of the construction of the same. The assessment was confirmed and this action was brought by appellees, who were contractors, for the purpose of enforcing its collection. The case was tried by the court and resulted in a judgment for appellees. A demurrer was filed to the complaint and overruled. The court made a special finding of facts and pronounced its conclusions of law thereon, to each of which conclusions appellants excepted. Appellants also filed a motion for a new trial which was overruled.
regularity of the proceedings leading up to No question is raised as to the validity or the assessment, but it is claimed on behalf of appellants that the property and rights of the street and interurban railway located in the street are not such property as is subject, under the statutes of the state, to a local assessment for the construction of a
The Legislature has provided for the location, establishment, and construction of sewers by cities and has also conferred upon
Appeal from Circuit Court, Delaware Coun- the city power to make special assessments ty; Joseph G. Leffler, Judge.
against the lots and parcels of land located Action by Charles Charles Gough and others within the territory benefited for the puragainst the Indiana Union Traction Com- pose of paying the costs and expenses inci*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes
dent thereto. The statute also expressly authorizes an assessment against the city on account of the benefits accruing to its streets, alleys, and public grounds. The property of appellants against which the special assessment in question was made consists of the right, license, privilege, or franchise granted by the city of Muncie to lay and maintain their tracks in the street and to operate their cars thereon for a period of years, together with the ties, rails, poles, wires, and other tangible property used in the construction and operation of the railway within that portion of Kilgore avenue lying within the bounds of the territory benefited. If this property of appellants does not fall within that class of property which the city is empowered to assess for the construction of sewers, then the assessment made against it cannot be upheld.
 The right of a city to impose and collect special assessments is derived from the sovereign power of the state. Without a statutory grant the power does not exist; and, when granted, the extent of the power is limited to that which the statute expressly confers. Barber Asphalt Co. v. Edgerton, 125 Ind. 455, 25 N. E. 436, and cases there cited; Klein v. Nugent Gravel Co., 162 Ind. 409, 70 N. E. 801; Zorn v. Warren Scharf, etc., Paving Co., 42 Ind. App. 213, 84 N. E.
Louisville, etc., R. Co. v. State, 122 Ind. 443, 24 N. E. 350; Louisville, etc., R. Co. v. Boney, 117 Ind. 501, 20 N. E. 432, 3 L. R. A. 435; Lake Erie, etc., R. Co. v. Bowker, 9 Ind. App. 428, 36 N. E. 864. It has also been held that the private right of way of a railroad company abutting on one side of a street may be subjected to a special assessment to pay the costs of paving such street. Peru, etc., R. Co. v. Hanna, 68 Ind. 562; Pittsburg, etc., R. Co. v. Hays, 17 Ind. App. 261, 44 N. E. 375, 45 N. E. 675, 46 N. E. 597; Indianapolis, etc., R. Co. v. Capitol Paving Co., 24 Ind. App. 114, 54 N. E. 1076.
In the case last cited the court intimated that the right of way of a steam railroad was not exempt from the levy of a special assessment for the paving of a street, upon the ground that such right of way was located entirely within the limits of the street paved, but it was decided that a right of way so located was not subject to such an assessment for the reason that it was not land abutting upon the avenue improved within the meaning of the statute. It may be conceded that the right of way of a steam railroad located longitudinally in a public street imposes a burden on the land in addition to the easement existing there in favor of the public. The easement enjoyed by a steam railroad so located is essentially different from that enjoyed by the public in the street, and it must be acquired from abutting landowners either by purchase or condemnation. As said in the case last cited: "When a company lays its tracks in the street, it imposes a new burden upon the land beyond the easement the city had, and this new interest can be created only by contract with the owners of the
So it must be concluded that the easement held by the company is an interest in the is property which must be acquired by purland over which its tracks run, and that it
chase and payment of the consideration like any other property."
[2, 3] The court is of the opinion that the statute authorizing the city to impose special assessments on lots and parcels of land to pay the costs and expenses of constructing a sewer is not broad enough to warrant the city in placing an assessment for that purpose against the tracks and right of way of a street and interurban railway located long-fee, or under the right of eminent domain. itudinally on a street within the district benefited. Certainly it cannot be said that the property so located can be regarded as a lot or parcel of land within the meaning of the statute. It may be that such property is so located as to be benefited by the construction of a sewer; and, no doubt, the Leg-sued in the case from which we have just  However, the course of reasoning purislature might have properly conferred pow-quoted does not lead to the conclusion that er upon cities to assess such property for the same rule would apply to tracks over that purpose. We are not required, however to determine what power the Legislature might have conferred, but to ascertain the extent of the power actually granted by the To hold that the statute in question authorized the city of Muncie to place a special assessment against the property of appellants would amount to judicial legislation. The court possesses no legislative
A private right of way of a railway company may be regarded as a parcel of land for the reason that the company owning such right of way has an interest in the soil amounting, at least, to an easement. It has accordingly been held that the right of way of a railway company may be subjected to a
which city cars and interurban electric cars are operated. On the contrary, the same course of reasoning, when applied to street and interurban railways located in streets, leads to a different result in view of the decisions of our courts to the effect that the construction and operation of such railways in the streets of a city do not constitute an additional servitude for which compensation must be made. Mordhurst v. Ft. Wayne, etc., Traction Co., 163 Ind. 268, 71 N. E. 642, 66 L. R. A. 105, 106 Am. St. Rep. 222, 2 Ann. Cas. 967; Kinsey v. Union Traction Co., 169 Ind. 563, 81 N. E. 922; Pittsburg, etc., R. Co. v. Muncie, etc., Traction Co., 174 Ind. 167, 91 N. E. 600. These cases are based upon the proposition that the use to which public
by a passenger, contributed to cause the infrom liability, if its servants were likewise jury would not, of itself, relieve the company guilty of negligence which was a proximate cause of the injury.
operation of such railways is not different [ board it, the fact that a starting signal, given in character and extent from that which was contemplated at the time of the dedication or condemnation of such streets. If this is true it must follow that companies owning and operating such railways in the streets do not hold any easement or interest in the land upon which the tracks are located. The
statutes provides that an assessment may be
made against the city, and if made it would cover all benefits accruing to the easement of the public in the streets.
 The right of a street railway company to maintain its tracks and to operate its cars in the street under the permission granted by the city is a part of such public easement. If the railway company were required by the terms of the franchise to pay a part of the benefits assessed against the city on account of public improvements a different question would be presented. It is not claimed that the franchise granted to appellants contains any such provision.
The precise question here considered has never been passed upon by the courts of this state, but the weight of authority from other states seems to sustain the conclusion reached in this case.
Conway v. City of Rochester, 24 App. Div. 489, 49 N. Y. Supp. 244; People v. Gilon, 126 N. Y. 147, 27 N. E. 282; Oshkosh City R. Co. v. Winnebago, 89 Wis. 435, 61 N. W. 1107; Koons v. Lucas, 52 Iowa, 177, 3 N. W. 84.
As sustaining their position appellees have cited a number of cases from the Supreme and Appellate Courts of Illinois. An examination of these cases convinces us that they are not of controlling force in the case at bar. The statutes authorizing the assessments which were held valid in those cases were essentially different from the statutes under which the attempt was made to impose the assessment sought to be enforced in this action. This court referred to those cases, and distinguished them in the case of Indianapolis, etc., R. Co. v. Capitol City Paving Co., supra.
In view of the conclusions we have reached in this case, a new trial would be of no benefit to appellees. The judgment is there
fore reversed with directions to the trial court to restate its conclusions of law in accordance with this opinion and to render judgment thereon in favor of appellants.
(53 Ind. App. 659)
NEELEY V. LOUISVILLE & S. I. TRACTION CO. (No. 8,045.)
(Appellate Court of Indiana, Division No. 1. June 24, 1913.)
1. CARRIERS (§ 305*)—INJURIES TO PASSENGERS-PROXIMATE CAUSE - CONTRIBUTING NEGLIGENCE OF THIRD PERSON.
[Ed. Note. For other cases, see Carriers, Cent. Dig. §§ 1132, 1136-1139, 1245, 1246; Dec. Dig. & 305.*]
2. CARRIERS (§§ 280, 287, 303*) - INJURY TO
PASSENGER-DEGREE OF CARE REQUIRED
Carriers of passengers are held to the highest degree of care for the safety of a pasif by the exercise of due care he could know, senger, and the conductor is required to know, whether any person was attempting to get on or off his car before permitting the same to start. [Ed. Note.-For other cases, see Carriers, Cent. Dig. §§ 1085-1092, 1098-1103, 1105, 1106, 1109, 1117, 1154-1159, 1161-1166, 1216, 1218, 1224, 1226-1232, 1234-1240, 1243; Dec. Dig. §§ 280, 287, 303.*1
3. CARRIERS (§ 247*)-CARRIAGE OF PASSENGERS COMMENCEMENT OF RELATION BOARDING STREET CAR.
Where a car is stopped at a point where it is required to receive passengers, the company extends an invitation to a person to become a passenger, and he becomes a passenger as soon as he steps upon the car steps.
[Ed. Note.-For other cases, see Carriers, Cent. Dig. §§ 984-993; Dec. Dig. & 247.*] 4. CARRIERS (§ 287*)-CARRIAGE OF PASSENGERS-DUTY OF CARRIER-OPPORTUNITY TO BOARD CAR.
A common carrier operating a street car must give to persons intending to become passengers at a usual stopping place a reasonable opportunity to board the car.
[Ed. Note.-For other cases, see Carriers, Cent. Dig. §§ 1154-1159, 1161-1166; Dec. Dig. § 287.*]
5. NEGLIGENCE (§ 136*) - TRIAL-QUESTION FOR JURY.
Ordinarily negligence is a question of fact is fixed and certain, or the negligence is so for the jury, but where the standard of duty clear that no verdict could make it otherwise, the question becomes one of law.
[Ed. Note.-For other cases, see Negligence, Cent. Dig. §§ 277-353; Dec. Dig. § 136.*] 6. TRIAL (§ 234*)-INSTRUCTIONS-IGNORING ISSUES.
Where the court directs a particular verdict if the jury should find certain facts to exist, the instruction must embrace all the facts and conditions essential to such a verdict. Dig. §§ 534-538, 566; Dec. Dig. & 234.*] [Ed. Note. For other cases, see Trial, Cent.
7. TRIAL (§ 253*)-INSTRUCTIONS-IGNORING ISSUES-INJURY TO PASSENGER.
In an action for injuries to a person attempting to board a street car, an instruction that if, while the conductor was going back to the rear platform to see if the plaintiff got safely aboard, the car was started upon a sig nal given by a passenger, which the motorman supposed was given by the conductor, the company was not liable, ignores the possibility of negligence on the part of the company's servtributed to cause the injury, and is erroneous. ants in other respects which may have con
[Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 613-623; Dec. Dig. § 253.*]
8. TRIAL (§ 296*)-ERRONEOUS INSTRUCTIONS -CURE BY OTHER INSTRUCTIONS. Where a person is injured by the sudden An instruction which is erroneous because starting of a car while she was attempting to it ignores facts which are essential to the ver
dict directed thereby cannot be cured by other | pellee's cars, at the intersection of Wenzel instructions given in the case. and Jefferson streets, in the city of Louisville, Ky.
[Ed. Note. For other cases, see Trial, Cent. Dig. $$ 705-713, 715, 716, 718; Dec. Dig. § 296.*1
9. APPEAL AND ERROR (§ 1032*) - HARMLESS
ERROR-BURDEN OF SHOWING.
The burden is upon the appellee to show that error in an instruction was not prejudicial to the appellant.
[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 4047-4051; Dec. Dig. & 1032.*]
The issues of fact were presented by a complaint and a general denial. A motion for a new trial was overruled, and this ruling presents the only error assigned and relied on for reversal. The only grounds of this motion presented and argued are those which predicate error upon the giving of instructions 1 and 2, respectively, tendered by 10. APPEAL AND ERROR (§ 1068*)-HARMLESS appellee. Before setting out either of these ERROR-ERRONEOUS INSTRUCTIONS-CURE BY instructions, we will indicate those averSPECIAL VERDICT. Error in an instruction as to carrier's lia-ments of the complaint which charge the negbility for injury to one attempting to board a ligence relied on; they alone being necessary street car, when the starting signal was given to an intelligent understanding of the quesby a passenger, which instruction ignored pos- tions herein discussed and determined. sibility of other negligence by the company's servants as a proximate cause of the injury, averments are as follows: "Plaintiff further is not cured by special findings of the jury of avers that while she was so attempting to the facts specified in the instructions, since enter upon said car for the purpose heretosuch findings indicate that the jury followed fore alleged, and at the time when she so the instruction in their general verdict. had one foot upon said step of said car and so had hold of said handholds as heretofore alleged, and before she had time to step upon said car, or the platform or step thereof, the said motorman and agents and servants of said defendant then in charge of and operating said car carelessly and negligently, and without warning to this plaintiff, suddenly and rapidly started said car forward with a sudden and violent jerk, thereby throwing and jerking this plaintiff off her feet and said step, and violently throwing her to the street and ground and dragging her thereon, and injuring her."
[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4225-4228, 4230; Dec. Dig. 1068.*]
11. APPEAL AND ERROR (§ 1066*)-HARMLESS ERROR-ERRONEOUS INSTRUCTIONS-APPLICABILITY TO EVIDENCE.
The court of appeals cannot weigh evidence to determine whether instructions were harmless, but if the undisputed evidence shows that the injury received by one attempting to board a street car was due to the giving of a starting signal by a passenger, and that there was no negligence of the company's servants which in any way contributed to the injury, error in an instruction which ignores the question of other negligence by the servants will not require reversal of the case.
We will at this point also indicate some of the evidence to which said instructions were
[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 4220; Dec. Dig. § 1066.*]| 12. APPEAL AND ERROR (§ 1066*)-HARMLESS applicable, and to which we will desire to reERROR-ERRONEOUS INSTRUCTIONS-APPLICA- fer in our disposition of the questions preBILITY TO EVIDENCE. sented. The appellant testified to substanIn an action for injuries received by a passenger while attempting to board a street tially the following facts, among others: She car which started upon signal given by a pas- started home from Louisville between 5 and senger, evidence that the car started very sud-6 p. m.; went to the corner of Wenzel and denly with a jerk is sufficient to warrant an inference that the negligent manner of starting Jefferson streets to catch her car. She had the car may have contributed to the injury, her four year old daughter with her, and and therefore an instruction, erroneous as ig- was carrying two pasteboard suit boxes; each noring the possibility of negligence of the com- being about two feet long and three inches pany's servants, is not harmless. thick and strapped together. As the car approached she signaled it to stop, and it stopped "on the northeast corner you always stop
[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 4220; Dec. Dig. § 1066.*] Appeal from Circuit Court, Floyd County;
William C. Utz, Judge.
Action by Elizabeth Neeley against the Louisville & Southern Indiana Traction Company. Judgment for the defendant, and plaintiff appeals. Reversed and remanded.
Ewing & Roose and Stotsenburg & Weathers, all of New Albany, for appellant. Charles D. Kelso, of New Albany, for appellee.
HOTTEL, P. J. This is an appeal from a judgment in favor of appellee in an action brought against it for damages for injuries alleged to have been sustained by appellant when attempting to board one of ap
I don't remember what happened. As soon as the car started, I remember it started, and the first thing I remember was I was on the
ground, and it seemed as though my limb; and authorities there cited. Hence in its last was doubled under me, and I remember my limb and my head hurt me a good deal at the time."
Other witnesses testified to substantially the same facts with reference to appellant's placing her child and packages on the car, and the manner of her attempting to get on. A witness, Minnie Reynolds, testified that the car started "very suddenly."
Robert W. Waite, in an affidavit for continuance, made on appellee's behalf and introduced in evidence, stated in substance that a witness Rittger, if present, would testify that he was one of the four persons on the rear platform. "The car was stopped on the north side of the intersection of said Wenzel and Jefferson streets for the purpose of allowing the plaintiff, Elizabeth Neeley, to board the same; that while she was attempting to board the car, and while she had one foot on the lower step and one foot on the ground, the car was suddenly started forward, and by such forward motion caused the plaintiff to be thrown to the ground; that the reason why said car started up was because another passenger, whose name to said H. Rittger was not known, suddenly reached up, caught hold of the bell cord and pulled the same twice, thereby ringing the starting bell twice in the front platform, and notifying and causing the motorman to put the car in motion before the plaintiff had safely got on board."
analysis the real question in issue, according to the statements of both appellant and appellee, was whether appellee exercised toward appellant, when she was attempting to board its car, that high degree of care which the law in such cases requires of carriers of the kind here involved toward their passengers.
It was to this particular question and issue that instruction No. 1 was directed and particularly applicable; hence its importance and controlling influence on the result of the case is apparent. It follows: Instruction No. 1. "*- * If you find from the evidence that the conductor was inside of the car performing his duties at the time the car stopped on the north side of the intersection of Wenzel and Jefferson streets in the city of Louisville, Ky., for the purpose of allowing the plaintiff to board it, and that the conductor immediately started back to the rear platform of the car for the purpose of seeing that the plaintiff safely got aboard the car before it again started, and that, while making his way back there for that purpose, and without having any reason to apprehend that a passenger would give the starting signals before he got back to the rear platform, the car started in response to a signal, not given by any of the employés of said car or any other person authorized to do so, but by a passenger standing on the rear platform, which the motorman supposed to come from the conductor, then you are instructed the plaintiff cannot recover in said circumstances, and your verdict should be for the defendant."
According to appellant's contention the sole question in issue between the parties on the trial of the cause, except the extent of the injuries, was whether appellee exercised the highest degree of practical care and diligence As applicable to this question the courts of for appellant's safety while she was attempt- appeal of this state have expressed and aning to board the car at the time she was in-nounced the following rules or principles: jured.
 1. "A common carrier of passengers is  Appellee puts the issue in a little dif- not, under the law, an insurer of their safeferent language when it says that "its de- ty; nevertheless, the law requires of it the exfense * is based upon the one ground ercise of the highest degree of care consistthat the accident to the appellant was caus- ent with the mode of its conveyance and ed by the unauthorized * and unap- the practical prosecution of its business prehended * * act of * * a pas- for the safety and protection of its passenger standing on the rear platform" of its sengers, and it is bound to continue the car. This is, in effect, stating the same is- exercise of such care until its passengers sue in different language only, because, while have alighted from the cars at their destinathe appellee could not be charged with an tion, at the usual place of stopping the cars." injury to appellant, for which an act of one (Our italics.) Indiana Union Traction Co. of its passengers, unauthorized and unfore- v. Keiter, 175 Ind. 268-275, 92 N. E. 982. To seen by it, was the sole, independent, and the same effect, but more directly applicable proximate cause, yet it must be admitted to the particular facts of this case is the that, if appellant's agents were agents were likewise language of the court in the case of North guilty of any negligence which could be said Chicago, etc., Co. v. Cook, 145 Ill. 551, 33 N. to be a proximate cause of, or to be direct- E. 958, quoted with approval by our Supreme ly connected with, the proximate cause of Court in the case of Louisville, etc., Co. v. such injury, the fact that an act of a passen- Korbe, 175 Ind. 450, 93 N. E. 5, 94 N. E. ger was also a contributory cause to such in- 768. The court in that case, in considering jury, would not in and of itself relieve appel- the duty that the carrier, through its conduclee from liability. North Chicago, etc., R. tors, owed to the plaintiff, said: "Carriers of Co. v. Cook, 145 Ill. 551, 556-558, 33 N. E. passengers are held to the exercise of the ut958; Winona, etc., R. Co. v. Rousseau, 48 most or highest degree of care, skill, and dil