Cincinnati, H.&I.R. Co. v. Worthington

• Decision Date: 25 November 1902
• Citation: 30 Ind.App. 663,65 N.E. 557
• Parties: CINCINNATI, H. & I. R. CO. v. WORTHINGTON.
• Court: Indiana Appellate Court

30 Ind.App. 663

65 N.E. 557

CINCINNATI, H. & I. R. CO.

v.WORTHINGTON.¹

Appellate Court of Indiana.

Nov. 25, 1902.

Appeal from circuit court, Rush county; Douglas Morris. Judge.

Action by Ida Worthington against the Cincinnati, Hamilton & Indianapolis Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Smith, Cambern & Smith, for appellant. Young & Young, for appellee.

WILEY, J.

Action by appellee against appellant to recover damages for injuries sustained while a passenger upon one of appellant's trains. Answer in denial, trial by jury, and verdict for appellee. Over appellant's motion for a new trial judgment was entered upon the verdict.

Overruling a demurrer to the complaint and overruling the motion for a new trial are assigned as errors.

The complaint avers that on the 11th day of October, 1900, appellee purchased of appellant at Rushville, Ind., a ticket from Rushville to Indianapolis and return; that on the return trip, on the morning of October 12th, at about 3 o'clock, while it was yet dark, appellant's servants and employés in charge of and managing the train on which appellee was a passenger carelessly and negligently called the city of Rushville station, stopped said train, and opened the door of the car in which appellee was riding, as an invitation for her and other passengers to alight, although said train was not within 40 rods of said station; that when appellee attempted to alight from said train, supposing it was at the station, as had been called by appellant's servants, said train suddenly jerked and threw her off of the car to the ground below, dislocating her shoulder, and bruising and permanently disabling her. The complaint furthers avers that appellee's injuries were caused by the carelessness and negligence of appellant, and without any fault on her part.

The objection urged to the complaint is that the negligent acts charged against appellant were not the proximate cause of the injury, but that appellee's injury was directly chargeable to the sudden jerking of the train, after she had gone to the platform and was in the act of getting off. Because the complaint fails to aver that the train was negligently “jerked” counsel contend that no actionable negligence is charged. It is the duty of the employés in charge of passenger trains to call stations, in order that passengers may be advised so that they may be ready to leave the train at their destination promptly and with all reasonable dispatch. Passengers have the right to rely upon such announcement, and this right is emphasized when it is dark, and they cannot see for themselves. It may be conceded that if the calling of the station, which it is averred was negligently done before it was reached, was not the proximate cause of appellee's injury, then the complaint is bad.

The complaint avers that it was dark, and as above stated, she had a right to rely upon the announcement made, and it was her duty to make all reasonable preparation to alight. The moving cause of her leaving her seat and going to the platform of the car, in the discharge of her duty to leave the train with all reasonable dispatch, after she had reached her destination, as she supposed, was the fact that the station where she desired to alight and to which her ticket entitled her to be carried was announced by the servant of appellant. The train came to a stop immediately following the announcement of the station. Appellee was thereby induced to go to the platform of the car upon such invitation to alight, and was thus placed in a position of peril. If the station had not been so announced, it is reasonable to suppose that she would have remained in her seat in a place of safety, and in such a position the sudden jerking of the train would have been harmless to her. It must necessarily follow that her injury is directly traceable to the negligence of appellant's servant in calling the station before it was reached. The calling of the station, the stopping of the train, appellee's going to the platform, and the sudden jerking of the train, are so intimately connected that their must be considered as one transaction, and this leads to the conclusion that the proximate cause of the injury was the negligence charged.

In support of appellant's position that the sudden jerking of the train was the proximate cause of the injury, and, as it is not charged that such jerking was negligent, the complaint does not state a cause of action, we are cited to the following case of Bridge Co. v. Quinkert, 2 Ind. App. 244, 28 N. E. 338. Our examination of that case leads us to the conclusion that it does not support appellant's position and is not in conflict with our holding here. The carrier of passengers is held to the exercise of a very high degree of care, and for a failure to use this care is responsible to a passenger who suffers an injury in a case where no fault of his contributes. Railroad Co. v. Buck, 96 Ind. 346, 49 Am. Rep. 168; Railroad Co. v. Hendricks' Adm'r, 26 Ind. 228. It is the rule that stopping a train at an unusual place places a railroad company presumptively in the wrong, and the onus of explaining it is thrown upon the company. Railroad Co. v. Whitfield, 44 Miss. 466, 7 Am. Rep. 699; Shear. & R. Neg. §§ 12, 280; Curtiss v. Railroad Co., 20 Barb. 282.

We are now dealing with a question of pleading, and, as shown by the complaint, the place where the train was stopped, and where appellee was thereby invited to alight, 40 rods from her point of destination, was an unusual, and we might add an improper, place for the train to stop, so far as is shown by the complaint. The demurrer to the complaint was properly overruled.

All other questions in the record are presented under the motion for a new trial. Appellant's motion for a new trial rests upon three grounds: First and second, that the...