Pere Marquette R. Co. v. Strange

Citation171 Ind. 160,84 N.E. 819
Decision Date26 May 1908
Docket NumberNo. 21,234.,21,234.
PartiesPERE MARQUETTE R. CO. v. STRANGE.
CourtSupreme Court of Indiana

OPINION TEXT STARTS HERE

Appeal from Circuit Court, La Porte County; J. C. Richter, Judge.

Action by Jeter G. Strange against the Pere Marquette Railroad Company for personal injuries. From a judgment for plaintiff, defendant appeals. Reversed, with directions.

See 82 N. E. 1135.

Elam & Fesler, for appellant. Theron Miller, F. E. Osborn, and W. A. McVey, for appellee.

MONTGOMERY, J.

Appellee recovered a judgment of $10,000 against appellant for personal injuries inflicted through an alleged breach of its duty as a common carrier of passengers. The complaint is in a single paragraph, and the negligence charged against appellant was (1) in failing to light its station grounds properly; (2) in carelessly running its train of cars; and (3) in negligently failing to guide and direct appellee. Appellant answered by general denial. Errors are properly assigned upon the overruling of appellant's motion for judgment upon the answer of the jury to special interrogatories, and in overruling appellant's motion for a new trial.

The facts shown by the evidence are substantially as follows: That appellee was a carpenter, 28 years of age, and came from Nashville, Tenn., to Michigan City, Ind., on May 13, 1904. He had traveled considerably in his life, both by day and by night time, but had never been in Michigan City before. He reached appellant's station by means of an electric car about 11 o'clock p. m., and had with him two trunks, one tool chest, and two grips. The electric car stopped on the north side of appellant's tracks, and appellee's baggage was unloaded there. The night was windy, cloudy, and dark. The railroad station consisted of a combination passenger and baggage car, placed south of the tracks, and between the station and main track there was a switch track. The station agent used the west end of the car as an office, and the east end, separated by a partition, was used as a waiting room for passengers. The car was lighted on the inside by two lamps, and there was a signal light on the outside and on the south side of the car, which cast its rays east and west. Appellee was informed by the street car conductor that the railroad and depot grounds were new, the station unfinished, and that this car was used as a waiting room. A stranger pointed out the station car, and, leaving his baggage on the north side of the tracks, he crossed over and entered at the east end of the car. Appellee was accompanied by a companion, and their train would not be due until 1:50 a. m. He bought two tickets for St. Joseph, Mich. The agent agreed to look after the checking of the baggage, and promised to awaken appellee when his train arrived. Appellee had been traveling since noon of May 12th, and rode the night before in a day coach from Louisville, Ky., to Monon, Ind., and slept some on the way, but was tired when he reached Michigan City. The agent having promised to wake him when the train arrived, he lay down on a bench and went to sleep. When the train was approaching the agent woke him up. He spoke to his companion about the grips, and left the station car at the east end. The agent, with a white lantern in his hand, went out at the west end of the station car and went upon the platform. A stranger went out of the waiting room first, and appellee's companion next, and appellee last. Appellee knew the night was dark, and that there might be danger, but had asked no one for instructions or directions. The platform was on the south side of the main track, and between the main and side tracks, and was 110 feet long and 12 feet wide, made of planks fitted closely together and against the rails, and stood about flush with the top of the rails. The main track and the side track were ballasted with gravel and sand level with the ties. When appellee got outside the station car he stopped to button his coat, and thus dropped somewhat behind the other two men. He then saw the headlight upon the approaching engine, and started in a northwesterly direction toward the track. He did not see the agent's lantern, but heard a voice say: “Come up this way” The wind was blowing, and he thought the sound of the voice came from the north side of the track. He continued in the direction in which he was traveling. The engine bell was ringing, but he did not hear it or the noise of the train as it approached, or notice whether the engine had slowed up, stopped, or was moving. He saw the side track when he passed over it, and when he reached the main track he did not stop, because he heard the voice of the agent say, “Come on,” and it sounded as though he was on the opposite side of the track. The train made no noise, and he thought it had stopped, and as he started to cross the track he thought the engine was no more than 7 feet distant, but perhaps it was 10 or 12 feet away. He looked at the engine before he started to cross, but did not while crossing. He was watching where he stepped, and could see the ground and rails, and when about half way across the main track he was struck by the engine and injured. The engine was equipped with an Edward's electric headlight of 2,000-candle power placed in front of a powerful reflector, and the light was burning brightly, and was such as to enable one upon the engine to see and distinguish objects from 2,000 feet to 3,000 feet away. The track west of the station was straight for 900 or 1,000 feet, and the rays of the headlight struck the track about 9 or 10 feet in front of the pilot. The engine was shut off about a mile west of the station, and was running of its own momentum, and at the rate of 5 or 6 miles an hour when appellee was struck. The engineer saw appellee step upon the track and immediately applied the emergency brake, and stopped the train within 50 or 60 feet. The station agent was at no time on north side of the track, but when he said, “Come up this way” he was on the platform, on the south side of the main track.

Appellant's motion for a new trial alleged that the verdict was not sustained by sufficient evidence, and was contrary to law, and that the court erred in denying appellant's request for a peremptory instruction.

Appellee's action is founded upon an alleged breach of duty owing to him in the character of a passenger from appellant as a common carrier The relation of carrier and passenger commences when a person, with the good-faith intention of taking passage, with the consent of the carrier, express or implied, assumes a situation to avail himself of the facilities for transportation which the carrier offers. Appellee having entered upon appellant's premises for the purpose of taking a train in due course, and purchased a ticket entitling him to transportation between designated points, was, while approaching the train upon which he was to be carried, and by which he was injured, clearly a passenger. 6 Cyc. 536; Citizens' Street R. Co. v. Jolly, 161 Ind. 80, 67 N. E. 935;Freemont, etc., R. Co. v. Hagblad, 72 Neb. 773, 101 N. W. 1033, 106 N. W. 1041, 4 L. R. A. (N. S.) 254;Exton et al. v. Central R. Co., 63 N. J. Law, 356, 46 Atl. 1099, 56 L. R. A. 508;Warren v. Fitchburg R. Co., 8 Allen (Mass.) 227, 85 Am. Dec. 700;Wabash, etc., R. Co. v. Rector, 104 Ill. 296;Webster v. Fitchburg R. Co., 161 Mass. 298, 37 N. E. 165, 24 L. R. A. 521;Illinois C. R. Co. v. Treat, 75 Ill. App. 340;Young v. New York, etc., R. Co., 171 Mass. 33, 50 N. E. 455, 41 L. R. A. 193;Barth v. Kansas City, etc., R. Co., 142 Mo. 535, 44 S. W. 778;Warner v. Baltimore, etc., R. Co., 168 U. S. 339, 18 Sup. Ct. 68, 42 L. Ed. 491;Atchison, etc., R. Co. v. Holloway, 71 Kan. 1, 80 Pac. 31, 114 Am. St. Rep. 462;St. Louis S. W. Ry. Co. v. Wainwright, 152 Fed. 624, 82 C. C. A. 16;Lake Street, etc., R. Co. v. Burgess, 200 Ill. 628, 66 N. E. 215;Chicago & A. R. Co. v. Walker, 217 Ill. 605, 75 N. E. 520;Haselton v. Portsmouth, etc., Ry. Co., 71 N. H. 589, 53 Atl. 1016;McBride v. Georgia, etc., Ry. Co., 125 Ga. 515, 54 S. E. 674;Shannon v. Boston, etc., R. Co., 78 Me. 52, 2 Atl. 678;Gordon v. Grand St., etc., R. Co., 40 Barb. (N. Y.) 550;Louisville, etc., Ry. Co. v. Reynolds (Ky.) 71 S. W. 516;Birmingham, etc., Ry. Co. v. Wise (Ala.) 42 South. 821.

Appellant does not deny that the relation of passenger had been established before and existed at the time of the accident in which appellee was injured, but a sharp conflict is waged as to the measure of appellant's duty to him as such passenger while approaching one of its trains. The common law, for the purpose of determining questions of liability for injury, divided passengers into two classes-(1) those being transported, and (2) those not being transported. The highest practical care and diligence were exacted of the carrier for the safety of passengers of the first class, and in case of injury resulting from defective roadbed, equipment, or management a presumption of the carrier's negligence was indulged by law in favor of the injured person. The carrier was bound only for the exercise of ordinary care with respect to passengers of the second class, and in case of accidental injury no presumption as to negligence existed in favor of either party. The common-law rule has not been rescinded or modified by statute in this state. The propriety and justice of the requirement that a high degree of care be exercised for the security of passengers of the first class, and the sound public policy upon which the presumption of negligence in case of accidental injury to one of that class from defective roadway or equipment is founded, are manifest. A passenger being transported at a high rate of speed by powerful engines is helplessly in charge of the carrier, required to obey its regulations, and to rely for his safety wholly upon the foresight, care, and prudence of its agents. All of its ways, instrumentalities, and methods of operation are exclusively within its control, and...

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5 cases
  • Hensley v. Braden
    • United States
    • United States State Supreme Court — District of Kentucky
    • November 19, 1935
    ...the highway, it was the duty of Hensley to exercise the highest degree of care for Braden's safety and protection. Pere Marquette R. Co. v Strange, 171 Ind. 160, 84 N.E. 819, 85 N.E. 1026, 20 L.R.A. (N.S.) 1041; Cincinnati, N.O. & T.P.R. Co. v. Giboney, 124 Ky. 806, 100 S.W. 216, 30 Ky. Law......
  • Hensley v. Braden
    • United States
    • Kentucky Court of Appeals
    • November 19, 1935
    ... ... Hensley to exercise the highest degree of care for ... Braden's safety and protection. Pere Marquette R. Co ... v. Strange, 171 Ind. 160, 84 N.E. 819, 85 N.E. 1026, 20 ... L.R.A. (N. S.) ... ...
  • Marion Trust Co. v. Blish
    • United States
    • Indiana Supreme Court
    • May 26, 1908
    ...particular case, are in reality quite apropos. He said: “It will be convenient to approach the questions in this case, having first an [84 N.E. 819]accurate notion of the rights and powers of the appellant as receiver of the American Trust & Banking Company. His counsel have been understood......
  • Marion Trust Company v. Blish
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    • Indiana Supreme Court
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