Toledo, St. L.&K.C.R. Co. v. Wingate

• Decision Date: 24 April 1894
• Citation: 37 N.E. 274,143 Ind. 125
• Parties: TOLEDO, ST. L. & K. C. R. CO. v. WINGATE.
• Court: Indiana Supreme Court

143 Ind. 125

37 N.E. 274

TOLEDO, ST. L. & K. C. R. CO.

v.WINGATE.¹

Supreme Court of Indiana.

April 24, 1894.

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

Action by Lida Wingate against the Toledo, St. Louis & Kansas City Railroad Company to recover damages for personal injuries. From a judgment for plaintiff, defendant appeals. Reversed.Bayless & Guenther, for appellant. Brush & Snyder, for appellee.

HOWARD, C. J.

This was an action brought by appellee, a passenger on appellant's train, to recover damages for personal injuries alleged to have been received by her on alighting from the train at one of appellant's regular stations. The complaint was in three paragraphs. The third paragraph, however, was withdrawn at the close of the evidence, and before the verdict. A demurrer was overruled to each paragraph of the complaint, after which a general denial was filed, and the cause was submitted to a jury, who gave a verdict to the appellee in the sum of $8,000, also answering certain interrogatories. The sufficiency of the complaint under the ruling of the court on the demurrer is first considered.

From the first paragraph of the complaint, it appears, among other things, that the town of Wingate is a regular station on appellant's road where passengers are received and discharged; that the board platform at said station is so negligently constructed that passengers cannot get off the cars without great danger, for the reason that it is 26 inches from the lower steps of the cars down to the platform; that children and lady passengers, on alighting, are compelled to jump down with both feet, to their great hazard, and which they cannot do without almost certain injury when the cars are in motion, unless they are assisted; that in consequence of such careless manner of constructing said platform, and on account of other negligent acts and omissions of appellant, to be hereinafter stated, appellee was, without any fault on her part, sorely maimed and injured, on the 5th day of May, 1891. The complaint then continues: That on said 5th day of May, 1891, the plaintiff (appellee) “was a passenger on defendant's train of cars from the city of Frankfort, Indiana; riding thereon upon a ticket purchased of defendant, entitling her to be so carried between said stations, and to be safely delivered at said Wingate. That she entered the defendant's car at Frankfort, carrying with her a good-sized package, consisting of two pieces of carpet, rolled separately, but lashed and tied together in one bundle, and some other small packages in her possession in said car; was accepted as a passenger thereon by the conductor in charge of said train. That shortly after said train left the station of Frankfort, the conductor in charge thereof passed through the car in which plaintiff was riding as aforesaid, and took up her said ticket, and was then and there and thereby informed that her destination was Wingate, and that she desired and intended to get off said train at said station, and that said conductor then and there saw plaintiff's said packages and bundles, and knew that she would need assistance in disembarking therewith from said train at said station. That defendant carelessly and negligently failed to stop said train at said station of Wingate a sufficient and reasonable length of time to permit plaintiff to alight therefrom in safety, and that the conductor and other servants of defendant carelessly and negligently failed to assist plaintiff in alighting therefrom with her said bundles and packages; and whereby, and on account of which carelessness and negligence, and without fault or negligence on her part, plaintiff was injured, as hereinafter fully alleged. That when said train was within about one-fourth of a mile from said station, Wingate, the whistle of the locomotive drawing the same was sounded, and the brakeman on said train opened the door of the car in which plaintiff was riding as aforesaid, and announced ‘Wingate,’ thereby informing plaintiff that the train was nearing her destination. That, immediately after the sounding of the whistle and the announcement of the station as aforesaid, said train was run on the side track on the south side of defendant's main track, and immediately east of the station of Wingate, and stopped for the purpose of letting the eastbound passenger train pass on said road. That the place where said train stopped on the side track, as aforesaid, was not the place for passengers to disembark therefrom; and plaintiff, knowing said fact, and for that reason, made no effort to get off at said place, but remained in her seat in said car, waiting for the train to pull up on the main track to the usual and proper place for passengers to alight at said station. That, as soon as the said east-bound train passed, the train upon which plaintiff was riding, as aforesaid, immediately backed onto the main track, and thence proceeded westward, at a moderate rate of speed, towards the usual, customary, and proper stopping place at said station,-Wingate. That no other or further announcement of the station was made, than as hereinbefore alleged; but plaintiff, knowing the train was nearing the proper place for her to get off, made ready to do so without delay, by putting her bundles and packages together for a quick and easy handling, arranging her wraps, etc. That the train made a momentary stop at or near the proper and usual place for passengers to alight therefrom, and that as it ‘slowed up’ and stopped momentarily, as aforesaid, plaintiff arose quickly from her seat in the car, gathered up her bundles and packages in her arms, and, without delay, proceeded in a brisk walk, unassisted by the conductor or other trainmen, towards the front or forward end of the car,-the proper door for passengers to make their exit therefrom. That, upon reaching and opening said door of the car, she found that the car was in gentle motion; but supposing that the train was merely pulling up to take on or unload baggage, and believing and expecting, as well she might, that the conductor or other servant of defendant would meet and assist her down the steps, and to alight in safety, she proceeded cautiously and carefully, though rapidly, out on the platform of the car, and then finding that the car was still moving, and more rapidly, and not seeing any one to assist her, she was stricken with dismay and fright, and seized with fear that she would be carried past her station, and away from home; and feeling that she must get off, and yet believing and expecting that the...