Indiana, D.&W. Ry. Co. v. Ditto

• Decision Date: 27 May 1902
• Court: Indiana Supreme Court
• Parties: INDIANA, D. & W. RY. CO. v. DITTO.

158 Ind. 669

64 N.E. 222

INDIANA, D. & W. RY. CO.

v.DITTO.

Supreme Court of Indiana.

May 27, 1902.

Appeal from circuit court, Vermilion county; A. F. White, Judge.

Action by Robert R. Ditto against the Indiana, Decatur & Western Railway Company. From a judgment for plaintiff, defendant appeals. Transferred from the appellate court under section 1337u, Burns' Rev. St. 1901 (Acts 1901, p. 590). Affirmed.F. F. James and R. D. Marshall, for appellant. Conley & Conley, for appellee.

MONKS, J.

This action was brought by appellee against appellant to recover damages for personal injuries alleged to have been received by appellee while riding upon a freight train on appellant's railroad. A trial resulted in a verdict in favor of appellee, and, over a motion for a new trial, judgment was rendered thereon against appellant. The assignment of errors calls in question the action of the court in overruling appellant's demurrer to the complaint, in sustaining appellee's demurrer to the second and third paragraphs of appellant's answer, and in overruling appellant's motion for a new trial.

It is insisted by appellant that the complaint is not sufficient, because it is not alleged that said freight train was one which, under the rules and regulations of the company, carried passengers between the stations named on appellee's ticket. Railroad Co. v. Bills, 104 Ind. 13, 17, 3 N. E. 611;White v. Railroad Co., 133 Ind. 480, 486, 487, 33 N. E. 273; Railroad Co. v. Kennedy, 77 Ind. 507, 510; Railroad Co. v. Lightcap, 7 Ind. App. 249, 34 N. E. 243; Railroad Co. v. Field, 7 Ind. App. 172, 34 N. E. 406, 52 Am. St. Rep. 444. Appellee, however, contends that it is not material whether or not he was in fact a passenger, or whether said freight train carried passengers, for the reason that the complaint charges an injury for which appellant was liable even if said train, under the rules of the company, did not carry passengers; citing Railroad Co. v. Bills, 118 Ind. 222, 20 N. E. 775; Railroad Co. v. Willoeby, 134 Ind. 563, 565, 566, 33 N. E. 627; Railroad Co. v. Matthews, 13 Ind. App. 355, 41 N. E. 842. The complaint is not a model of good pleading, and it is somewhat difficult to determine the theory upon which it was drawn. We think, however, after a careful examination of its allegations, that it charged an injury for which appellant was liable, although said train did not carry passengers. It appears from the complaint: That appellee had a ticket which entitled him to be carried on appellant's railroad from Hume to Dana. That he was informed by appellant's ticket agent that a certain freight train would stop at Dana, and that it carried passengers to that point when it was required to stop for other purposes, and directed him where to board said freight train. That appellee entered the caboose of said freight train, and, after the same had gone about three miles, the conductor in charge of said train refused to take his ticket, and ordered him to get off the train at once; using the most vile and insulting language, and applying to appellee the most opprobrious and insulting epithets. The conductor continued his abusive language, demanding that appellee get off the train. Appellee protested, and declared he could not get off when the train was running at that rate of speed. The conductor had the train “slowed down,” but declared it would not stop, and that appellee must get off, or he would throw him off. That appellee, to avoid being assaulted and thrown from the train, went onto the steps of the caboose, and the conductor followed him out, and stood over him and ordered him to get off, or he would throw him off. That to save himself from assault and injury, appellee attempted to get off the train while it was moving, and was injured. It was so dark when appellee attempted to get off the train that he could not see. It is true that it is not alleged that the conductor touched appellee, but it is clear that appellee was compelled by the order and demonstrations of the conductor...