Chicago, T.H.&S.E. Ry. Co. v. Collins
| Citation | 59 Ind.App. 572,108 N.E. 377 |
| Decision Date | 31 March 1915 |
| Docket Number | No. 8483.,8483. |
| Parties | CHICAGO, T. H. & S. E. RY. CO. v. COLLINS. |
| Court | Court of Appeals of Indiana |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Greene County; Charles E. Henderson, Judge.
Action by Goldie Collins, by next friend, James S. James, against the Chicago, Terre Haute & Southeastern Railway Company. From a judgment for plaintiff, defendant appeals. Reversed, with instructions to sustain a motion for new trial.Webster V. Moffett, of Bloomfield, Lamb, Beasley, Douthitt & Crawford, of Terre Haute, and Wm. F. Peter, Chicago, Ill., for appellant William L. Cavins and William L. Slinkard, both of Bloomfield, and A. T. Mayfield, of Jasonville, for appellee.
Appellee recovered a judgment in the trial court for $1,650, by reason of personal injuries suffered by her in alighting from appellant's train at Midland, Ind. The complaint is in two paragraphs. The negligence charged in the first paragraph is, in substance, the failure of appellant to stop its train at Midland Station a sufficient length of time to enable appellee to alight in safety, permitting the aisle and platform of the car to be crowded with other passengers, and thus obstructing appellee in her passage from the car, starting the train as appellee was about to step from the car, and under such circumstances permitting the car platform to become crowded so that she could not re-enter the car, and thereupon materially increasing the speed of the train, whereby appellee was thrown to the station platform and injured. By the second paragraph it is charged that the train was stopped before the car in which appellee was riding had reached the station platform; that, nevertheless, she started to leave the car, but was delayed by reason of the crowded condition of the aisle and car platform; that appellant failed to stop the train long enough for appellee to alight; that appellant started the train as appellee stepped onto the car platform; that believing that appellant intended to pull the car up to the station platform and then stop it, she continued down onto the car steps, whereupon appellant, without stopping said train, increased its speed with a sudden and violent jerk, whereby she was thrown to the station platform and injured. Appellant's acts and omissions complained of in the complaint are alleged to have been negligently done and omitted respectively.
The only error assigned and not waived is the overruling of the motion for a new trial. Under such motion, it is argued that the verdict is not sustained by sufficient evidence. It is urged that the evidence established affirmatively that appellee was guilty of negligence contributing to her said injury as the proximate cause thereof. The evidence bearing on such issue is substantially as follows:
Without contradiction, it appeared that on July 4, 1911, appellee, a girl 20 years old, was living in the home of Mrs. Henderson, at Bloomfield. On that day, she started for Midland to attend the funeral of her brother's child. At Linton she became a passenger on appellant's train, having a ticket entitling her to transportation to Midland, a few miles distant. The train included five coaches and a baggage car. By reason of persons returning from a celebration at Linton, the train was crowded to the extent that the seats were all occupied and there were passengers standing in the aisles and on the platforms of the coaches. Appellee entered the rear car, but by reason of its crowded condition, she was unable to obtain a seat, and remained standing in the aisle. In due course, the conductor took up the tickets and left the car, and thereafter no train official entered the rear coach. The station at Midland is on the west side of the railroad. South of the platform is a narrow highway intersecting the railroad and south of the highway are cattle guards and wing fences. The train reached Midland after 9 o'clock at night, and stopped so that the rear coach was south of the cattle guards. There was a lot of evidence that Midland Station was not called. An assistant conductor testified that after the train had stopped, he stood on or near the wing fences and called the station through the windows of the rear coach. There were about 50 passengers for Midland and who there left the train. Witnesses in estimating the time the train stood at Midland Station and the speed at which it was running when appellee jumped from it, as hereafter set out, differed somewhat, the extremes of the former being 2 and 5 minutes, and of the latter 10 and 20 miles per hour. In answer to interrogatories the jury found that the train stood at the station three minutes, and that it was running eight miles an hour when appellee left it. The witnesses agreed that while appellee was standing on the platform and steps preparatory to jumping from the train, its speed increased. The answers to the interrogatories disclose that the rear coach stood 85 feet south of the south end of the platform, that the platform was 165 feet long, and that the point at which appellee left the train was 250 feet north of the north end of the platform. These answers are in harmony with the evidence.It thus appears that the train had run 500 feet before appellee jumped from it. A passenger who was standing on the car platform when appellee came to the platform from the car testified that she asked if this was Midland, and, being informed that it was, that she said, “I must get off here”; that he told her not to undertake it; that she was preparing to jump when he placed his arm in front of her, and told her it meant death for her to jump and that he would stop the train; that he then turned to direct a passenger to pull the bell rope; and that appellee leaped from the train as he turned. This witness was corroborated in the main by two other witnesses who were passengers.
Appellee, as a witness, denied this conversation, and the jury in answer to an interrogatory found that appellee was not warned by a fellow passenger not to attempt to get off the train after it had left the station.
Appellee's testimony in her own behalf is, in part, substantially as follows: Midland Station was not called. After the train had stopped, she learned from a fellow passenger within the car, by inquiry, that the stop was for Midland. She then proceeded to crowd her way down the aisle to the front platform. The platform was crowded with passengers. As she reached the door the train started. She proceeded to the first or second step, and discovered that the car was passing the cattle guards, and she thereby knew that the station platform had not been reached. She hesitated, thinking that the train would stop at the station platform. She believed the train was checking its speed, and thereupon stepped down a step. The train did not stop. She held to the north handhold with her right hand, and had a bundle in her left hand, consisting of a shirt waist wrapped in paper. “I waited until just as the train passed the depot, and thinking it was going slow enough, and thinking I was getting off on the platform, jumped.” As she jumped the train increased its speed with a jerk. “ From shortly after the train passed the cattle guards “it all looked the same, and I thought it was the platform.” There were grown people and children on the car steps as she jumped off. Appellee had made a former trip to Midland over appellant's railroad, arriving at night and leaving in the morning. She knew that the station platform extended both north and south of the depot. On her cross-examination, she stated that it was dark when the train reached Midland. Being asked whether she re-entered the car after going down the steps, she replied: “I could not get back in the train.” Being asked whether she started back into the train, she answered: “I looked back and people were crowded behind me and children pushing against me.” She could not see the ground. Everything looked smooth and dark alike, and she thought she was jumping on the platform. She thought the car had just passed the depot. Appellee in fact jumped into a side ditch. Her injuries were serious, among them the fracture of both bones of the right leg about three inches above the ankle, and from which she had not entirely recovered at the time of the trial nine months later.
[1] Considering the crowded condition of the train, the darkness, the...
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