On Petition for Rehearing.
Hotter, J.Counsel for appellant in their petition for a rehearing urge, with much earnestness, that the court failed to consider in the original opinion some questions that they deem vital and controlling. We therefore supplement that opinion with a consideration of those questions.
9. Counsel first insist that neither of the several paragraphs of complaint states sufficient facts. The only objection urged in the petition for rehearing is that said paragraphs do not allege “that the place at which appellee *254desired to alight was a usual stopping place on appellant’s railway. ’ ’
To sustain their contention that this is a necessary allegation in each paragraph of the complaint, counsel have cited two eases, one of which relates to an injury received by a passenger in alighting from a steam railroad, caused by there being no platform at the point where the train stopped, and said passenger was injured by stepping to the ground while the train was standing; and the other ease cited was a case where the passenger was ejected from the train. So it will be seen that the theory of the complaint in each case was entirely different from the theory of the several paragraphs of complaint in the case at bar. But even if it were conceded that such an allegation were necessary in a suit like this one, if brought against a steam railroad, it would not follow that such an allegation is necessary where the suit is against an electric street railway. The manner of operating steam railroads is so different from the manner of operating electric street railways, that the rules of law obtaining in the first do not always apply to the latter. The steam railroad companies usually have a schedule time upon which they operate their trains, and have fixed places for stopping to discharge and receive passengers, so that there was reason for the application of the rule contended for by counsel in the particular cases cited; but upon electric street railways, where the manner of operating the car is, in a large measure, by signal, and the places of receiving and discharging passengers, and the stopping and starting of the car for such purposes, all depend, to a great extent, on the signal, the reason for the rule ceases;-and, this being true, the rule itself ceases.
The complaint alleges that a signal to stop was given, and that in obedience thereto the motorman slackened the speed of the ear, and almost or quite stopped it, and that appellee, believing that the car would be stopped for the *255discharge of passengers at that point, got np, preparatory to alighting from said car. • For the purposes of a suit against an electric street railway company, this allegation was the equivalent of the allegation contended for by counsel, which, in the cases cited, applies to steam railroads, and we think made the several paragraphs of complaint entirely sufficient in this regard. Anderson v. Citizens St. R. Co. (1895), 12 Ind. App. 194.
10. The one question, however, which counsel in their brief on petition for rehearing most strongly emphasize and. urge, is one relating to “the proximate cause of the in jury,” as disclosed by the evidence. They insist in their brief tfiÍT the uncontradicted evidence shows “that the signal was given to the motorman to stop the car; that the plaintiff arose to her feet before the car had stopped, for the purpose of alighting, and that a passenger on the car — a stranger to the company — gave the signal to 'go ahead; that thereupon, in obedience to the signal, the motorman applied the power, and that the starting of the car caused the plaintiff to fall, from which fall she received the injury complained of.” Counsel then add: “It seems to us that the giving of the signal to go ahead was the proximate cause of the car’s starting. * * * No reference whatever is made in the opinion to the fact that a stranger gave the signal to proceed. The whole gist of the ease, so far as the eiddence is concerned, is wrapped up in this one subject. ’ ’
"We cannot agree with counsel in their conclusion that, under the evidence, the whole gist of the case is, that a stranger to the company, a passenger on its car, gave the signal to go ahead. In considering the evidence we must not lose sight of the negligence charged in the complaint as the proximate cause of appellee’s injury. We quote from the first paragraph of the complaint: “That said motorman, without giving any notice or warning, then and there carelessly and negligently so applied power to said car as *256to cause it to move forward with a sudden jerk, by means of which jerk, and on account of said negligence of said motorman, this plaintiff was thrown from, said ear.”
The negligent act here charged as being the proximate cause of the injury, is that the motorman so carelessly and negligently applied the power as to cause the car to move forward with a sudden jerk. It is not only the moving forward of the car or increase of the speed that enters into and characterizes the negligence charged, but the time, manner and circumstances of the moving of the car all enter into and give character and quality to this act in determining whether it constituted negligence. So that the reason for the motorman’s increasing the speed of the '^r is but one element entering into the question of the negligence charged, and is not the whole gist of the case, as appellant’s counsel contend.
We know that as a general rule a common carrier of passengers is only liable for the negligent acts of itself and servants. It is not liable for the acts of strangers. But under the evidence in this case this rule is not necessarily controlling. The evidence on the question of signals, who gave them, when and where they were given, and how many were given, is conflicting. The conductor and other witnesses testified that the intersection of Lake and Center streets, just after the car passed the curve, where it was claimed the signals were given and the speed of the ear was being decreased, was regarded as a regular stopping place. There were a number of passengers on the car, among them appellee, who desired to get off at this point. The conductor testified, in substance, that after leaving Buffalo street he had been requested by a passenger to stop the car on Lake street, and that, pursuant to that request, midway between Buffalo and Lake streets, he gave the motorman the signal to stop the car at said Lake street; that he noticed when he got around the curve that the motorman '.vas not going to stop, and that he (the conductor) was about to give him another signal to stop, but saw a passenger — Jack Shoup— *257get up and pull the bell once, which was the signal to stop, and that he did not again give the signal himself, as he thought the one given by Shoup would be sufficient; that the speed of the car was slackened, and he thought it was going to stop, when he saw another passenger — Mr. Gray— give the bell two rings, which was the “go-ahead” signal; that the car then increased its speed, and about this time plaintiff was thrown off; that he (the conductor) gave the bell three rings, which he says was the emergency signal, and meant “Stop the car at once.”
Witness Gray testified that after the car turned south on Lake street, and when it reached the usual stopping place, he said to the conductor: “Aren’t you going to stop ? ’ ’ and that the conductor then rang the bell, which signaled the motorman to stop, and that the ear then began to decrease in speed, but not enough to suit Gray, and he said to the conductor: “Why don’t you stop?” and he (Gray) then “jumped to pull the rope, and pulled it three or four times, * * * hard and fast.”
The witness Shoup testified to giving the stop signal. Other witnesses testified to hearing some of these signals, but we have quoted enough of the evidence to indicate that it was conflicting, and showed a conflict and confusion of signals, and an effort on the part of the conductor, and passengers as well, to stop in the first instance.
There was evidence also showing that the partition in the front of the car, between the passengers and the motorman, was made of glass, escept about three feet of the lower part; that the motorman by looking back could see the passengers in the ear; that when the speed of the car decreased, appellee got up, preparatory to alighting; that the ear then increased its speed, started suddenly with a jerk, and threw appellee off.
It seems to us that this statement of the evidence is sufficient to show clearly that the question of negligence in *258this case did not depend wholly on the question whether the signal to start the car, after its speed had been decreased, was given by a stranger, and that even if it did the question was one of fact to be determined by the jury, and not one of law to be determined by the court. The conductor admits that he gave one of the signals to stop the car, and witness Gray testified that the conductor gave the stop signal immediately before the car’s speed slackened. The car’s speed did slacken to make the stop, and the jury, under the evidence, had a right to infer that the “go-ahead” signal was never given by any one after the speed of the car slackened, because the conductor says that the passenger Gray gave the “go-ahead” signal of two' bells, while Gray says that he gave the bell three or four hard, fast jerks, which signal, if it meant anything, meant an emergency stop.
The jury had a right to infer, also, that the motorman’s action in decreasing the speed of the car was such as to have charged him with knowledge that passengers on the car might, on account of this act, have placed themselves in a position to be injured by any sudden movement of the car. The evidence warranted the further inference by the jury that there was such a conflict or confusion of signals given that the motorman should have known that there was something wrong, and that the high degree of care, caution and prudence which the law imposes upon those operating such cars — in the matter of looking after the safety of passengers — required that the motorman, before applying the power so as suddenly to move his car, should look to see the situation of the passengers in the car.
6. The car was open in front, so that the motorman could see the passengers in the car, their position and situation, by looking; and while it is true, generally speaking, that his duties require that his attention be directed to the front and sides of his car, yet circumstances and conditions may arise that would require him to look also at the situation in the rear. Bessenger v. Metropolitan St. *259R. Co. (1903), 79 App. Div. 32, 79 N. Y. Supp. 1017; Gregorio v. New York City R. Co. (1906), 97 N. Y. Supp. 373, 49 Misc. Rep. 249.
10. The real question, under the issues tendered by the complaint, was, Did appellant, by and through its agents in charge of its car at the time plaintiff was injured, in the operation of said car, exercise the high degree of care, caution and prudence that the law imposes in such eases, or did said agents carelessly and negligently apply the power, and cause the car to start with a jerk at a time when plaintiff was standing, preparatory to getting off the car, and thereby cause her injury, as charged in her complaint 1 In the determination of this question the jury was not bound to consider only, and be controlled entirely by, the one question of whether a stranger gave the motorman the signal to go ahead; but such question was to be determined from all the facts and circumstances of the case developed by the proof, and, under the proof before indicated, the law does not permit us to- disturb the conclusion reached by the jury.
11. It is only necessary that “the evidence affirmatively establish circumstances from which the inference fairly arises that the accident resulted from the want of some precaution which the defendant ought to have taken.” Wabash, etc., R. Co. v. Locke (1887), 112 Ind. 404, 421, 2 Am. St. 193. See, also, Louisville, etc., R. Co. v. Schmidt (1893), 134 Ind. 16.
10. The ease at bar is entirely different from the case of Claypool v. Wigmore (1904), 34 Ind. App. 35, relied on by counsel. That is a case where a separate, intervening, responsible agent cut off the line of causation from, the original negligence, and this agency, together with the negligence of the injured party, was the sole, proximate cause of the injury. Neither is the case of Sirk v. Marion St. R. Co. (1895), 11 Ind. App. 680, relied on by counsel, directly m point. In that case there was a special verdict, and *260the court in discussing it uses the following language: “So far as appears from the verdict, appellant in no other way informed the appellee of her desire to leave the ear at Twenty-sixth street than-by the signal given by herself to the motorman, in pursuance of which he slowed up and came to almost a stop, when she gave another signal, intended by her, indeed, as a stopping signal, but which may well have been the regular signal to start up the car. If it was, there was no negligence in the motorman’s obeying it, unless he knew, or, by the exercise of due care, might have known that appellant was not yet off, but was in a position of danger should he start up the car. Nothing of this kind is found.”
The language just quoted immediately precedes the language quoted by counsel in their brief for rehearing. There the special verdict failed to show that the motorman “knew, or by the exercise of due care might have known, that appellant was not yet oJff, but was in a position of danger should he start the car.”
12. In the case at bar there was a general verdict, and every inference fairly deducible from the evidence is presumed in its favor. There was some evidence from which the jury might have inferred the very facts before quoted, which the jury in the case of Sirk v. Marion St. R. Co., supra, failed to find in the special verdict.
10. Counsel also contend that the court erred in refusing to give certain instructions tendered by appellant. These instructions refused, and argued by appellant in its brief for rehearing, were based on the theory that if the signals given to the motorman to stop and to start the car were given by strangers, and the motorman acted upon them, and increased the speed of the car without knowing that appellee was standing and that appellee was thereby injured, there could be no recovery, thereby precluding the possibility of a recovery on account of the negligent manner of increasing the speed of the car *261with such suddenness as to throw a standing passenger from the car, and leaving out of account also the consideration by the jury of all other circumstances that might tend to prove negligence on the part of the conductor or motorman in connection with the starting of the car, or that might show a lack of that high degree of care, caution and prudence on their part which the law imposes in such eases. Crump v. Davis (1904), 33 Ind. App. 88; Louisville, etc., R. Co. v. Snyder (1889), 117 Ind. 435, 3 L. R. A. 434, 10 Am. St. 60; Terre Haute, etc., R. Co. v. Sheeks (1900), 155 Ind. 74.
For the reasons before expressed in discussing this same question in considering the evidence, and in view of the authorities heretofore cited, we think the court committed no error in refusing these instructions.
Counsel also object to instruction seven, given by the court at the request of appellant. This instruction states the law in accord with our views of this case, as before expressed.
13. Counsel next insist that in the original opinion the motion for judgment on the answers to interrogatories was treated as waived by appellant, when, in fact, it was not. It is only when the answers to special interrogatories are in irreconcilable conflict with the general verdict that they prevail against it. Farmers Mut. Fire Ins. Co. v. Jackman (1905), 35 Ind. App. 1; Wabash R. Co. v. Keister (1904), 163 Ind. 609; City of Mishawaka v. Kirby (1904), 32 Ind. App. 233.
We have examined the answers to interrogatories with care, and find no such irreconcilable conflict between them and the general verdict. We have tried to consider with care the questions presented by counsel in their petition for rehearing, and find no ground in the petition that warrants the granting of said petition.
Petition for rehearing overruled.