Chicago, South Shore and South Bend Railroad Company v. Pacheco
| Decision Date | 10 May 1932 |
| Docket Number | 14,310 |
| Citation | 181 N.E. 7,94 Ind.App. 353 |
| Parties | CHICAGO, SOUTH SHORE AND SOUTH BEND RAILROAD COMPANY v. PACHECO |
| Court | Indiana Appellate Court |
From LaPorte Circuit Court; Alfred J. Link, Judge.
Action by Casario Pacheco against the Chicago, South Shore and South Bend Railroad Company. From a judgment for plaintiff, the defendant appealed.
Reversed.
Ralph N. Smith, Ben C. Rees and Russell W. Smith, for appellant.
Lemuel Darrow, Earl Rowley, C. V. Shields and Moore, Long, Chudom & Johnson, for appellee.
The appellant operates an electric railway from Michigan City Indiana, west through Gary to Chicago, Illinois. The appellee was an employee of the appellant but had severed his connection with his employer. On April 16, 1928, he had come to the depot of appellant in Gary for the purpose of taking a train to Michigan City, Indiana, to secure wages due him from appellant. He had been provided with two workmen's passes, one for the trip to and one for the trip from Michigan City. Instead of getting on an east-bound train going to Michigan City, he got on the west-bound train going to Chicago.
The complaint in this action charges that the conductor of the appellant's train pushed the appellee off the train while the same was in rapid motion, thereby severely injuring him, for which he prayed damages.
The complaint is in two paragraphs, the first paragraph alleges that the appellee is a Mexican and unable to speak, read or write the English language; that he boarded the train in good faith and that, after the train had left the station, an agent, servant and employee of the appellant came through the train collecting tickets from the passengers; appellee presented his passes to said agent, who became angry, and wrongfully, maliciously and unlawfully, in a rude, insolent and angry manner, threw and pushed this appellee off said train, while it was moving, throwing him onto the bed of the railroad track which was covered with stone and cinders, without stopping the train or slacking the speed thereof, thereby severely injuring the appellee.
The second paragraph of the complaint alleges that the appellee was injured by reason of appellant's negligence as follows: The appellee presented the said servant and employee of appellant with his passes which said agent returned to appellee; that said agent and employee motioned for plaintiff to come out in the vestibule of said car on which appellee was riding, that said appellant company, through its agent and employees, carelessly and negligently left the trap door in the vestibule of said car open; that said agent and employee, knowing said doors were open, carelessly and negligently beckoned this plaintiff to come to said platform that while appellee was on said platform, said train was going at a rapid rate of speed, the exact speed of which is not known by this appellee, and which appellee is unable to estimate; that, while appellee was standing on the platform in the aforesaid vestibule, where he had been so negligently called by the agent and employee of the appellant, and where said doors had been negligently left open by the appellant, he was carelessly and negligently hurled, pushed, thrown and tipped from said train; that he fell on the hard cinder surface of the road bed; that, in said fall, he was permanently, painfully and severely injured, for which he prayed damages.
The appellant filed separate answers in general denial to each paragraph of complaint.
The cause was submitted to a jury for trial. At the close of all the evidence, the appellant moved the court and filed a written motion therefor to direct a verdict for the appellant upon the second paragraph of complaint, which motion was by the court overruled; to which ruling of the court, the appellant at the time excepted.
The jury returned a verdict in favor of the appellee for $ 2,000, for which amount judgment was rendered.
The only evidence introduced by the appellee to prove how he happened to get off the train was his own testimony, and is, in substance, as follows: That he got on a car of the train and that he sat down in a seat four or five seats from the door; that the conductor came to him and asked him for his tickets; that the conductor punched his tickets, and returned them to the appellee; that the conductor then motioned to him to come out where he was standing alongside of the door; that at the time the car was traveling very rapidly and had gone about seven or eight blocks from the station; that the door near which the conductor was standing was open and that it was the door leading to the outside of the car. "He talked to me about three minutes."
The testimony was taken through an interpreter and can best be understood by setting out the questions and answers.
The witness then testified as follows:
The conductor of the train testified that he never saw the appellant.
Harold Dimmick testified that it was the duty of the collector and flagman to protect the rear end of the train, that that was a part of his duties during April of 1928. He further testified that he did not recall the incident of this accident that occurred to this appellee, but that he was notified of it at a later date. He further testified that, on the morning of April 16, 1928, he was employed by the South Shore Railway as a collector and flagman and that the train left Gary that morning at 7 o'clock; that there were three cars in said train and that his position was on the rear car; that the train was made up at Gary and that their destination was Chicago; that said train was a local train and that it makes all local stops; that, when he got on the train that morning, he was in charge of the third or last car and that he found on this car a passenger who handed him some passes similar to those which had been marked Plaintiff's Exhibits 3 and 4. That this man who handed him these passes was seated in the front end of this rear coach on the north side of the car; that, in the front end of this car, there was no smoking compartment and there were no toilet facilities between the place where the appellee was sitting and the entrance of the car. He then testified as follows: He testified that he never punched the tickets given to the man, and that his punch hole as shown was not the same as the one shown in the exhibit.
Mrs Florence Tenny Muhs testified that she is a resident of Gary, Indiana, and...
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