Cincinnati v. McClain
| Decision Date | 09 June 1896 |
| Citation | 44 N.E. 306,148 Ind. 188 |
| Court | Indiana Supreme Court |
| Parties | CINCINNATI, I., ST. L. & C. RY. CO. v. McCLAIN. |
OPINION TEXT STARTS HERE
Appeal from superior court, Marion county; Lewis C. Walker, Judge.
Action by Fletcher McClain against the Cincinnati, Indianapolis, St. Louis & Chicago Railway Company for personal injuries. There was judgment for plaintiff, and defendant appeals. Reversed.Elliott & Elliott and John T. Dye, for appellant. Wm. A. Ketcham, for appellee.
This was an action for damages, brought by the appellee for personal injuries, caused, as alleged, by the negligence of the appellant. The accident occurred at a point on appellant's line of road a little east of where the same crosses the Indianapolis Belt Railroad, and while appellant's train was approaching the city from the east, between 10 and 11 o'clock on the night of June 28, 1888. Appellee was a passenger, and it appears that he wished to leave the train at the crossing of the Belt road. It is alleged in the complaint that, as the train neared the city, the appellee “inquired of the conductor in charge of said train whether or not he could get off safely at the crossing of the Belt Railroad near the city of Indianapolis, and whether the train upon which he was riding would stop at said crossing; that he was informed by said conductor that the train would stop, and he could get off without any danger, if he so desired; that the conductor directed him, as soon as they should come to freight cars standing on the side track, which he told the plaintiff would be the first freight cars that they would pass after the time the conductor and the plaintiff were talking, to go upon the platform, and be ready to get off as soon as the train came to a stop; that when the train came to freight cars the plaintiff, pursuant to the directions of the conductor of said train, went out upon the platform, and, as the train slowed up, he walked down to the lower step, to be ready to get off, as directed by the conductor, so soon as the train should stop; that the train came nearly to a stop, but, without entirely stopping, it was negligently started up with a sudden and violent jerk to go forward again, and whereby the plaintiff was thrown under the cars, and so that the car wheels passed over and cut off both of his legs, and so injured him that both of his legs had to be amputated above the said injury”; that by reason of said injury he has suffered, and will always suffer, and has been incapacitated from work and labor, all to his damage in the sum of $10,000; “that the place where he was directed to get off of said cars by said conductor was not a safe and proper place for him to get off; that said injury occurred by reason of the negligence of the said railroad company, and without any fault or negligence whatever on his part contributing thereto.” The cause was submitted to a jury, who returned a verdict for appellee in the sum of $5,500, together with answers to interrogatories submitted by the appellant and by the appellee.
Numerous alleged errors are assigned and discussed by counsel, but the bill of exceptions does not appear to be in the record, and the only questions before us relate to the sufficiency of the complaint and to the correctness of the court's action in overruling appellant's motion for judgment on answers to interrogatives notwithstanding the verdict of the jury. The answers to interrogatives show that at the time of his injury, June 28, 1888, appellee was a passenger on appellant's train from Valley Junction to Indianapolis; that shortly before the train reached the Belt road he informed the conductor that he desired to get off at the crossing, and asked if he could do so; that the conductor gave the required permission, and informed appellee that he could get off without danger; that shortly before arriving at the crossing the conductor directed appellee that, as soon as they reached certain freight cars standing beside the track, he should get upon the platform, and be ready to step off when the train should come to a stop; that the Belt road crossing was at the time a crossing of appellant's main line, the Belt road being a railroad over which passengers might be transported; that at and prior to the time of the accident the appellant was accustomed to stop its trains at the Belt, and permit passengers to alight; that appellee knew that there was no passenger station or platform at or near the crossing, and knew that the Belt road was not advertised as a stopping place for the receiving or discharging of passengers, and that the stop there was a short one; that there was then a signal keeper on duty at night, and it was the practice to slow up the train as it approached the crossing, and, if a white signal was given by the keeper, showing a clear track, the train would pass on to the city without coming to a full stop; that the appellee was familiar with the movement of west-bound trains at the Belt crossing, having gotten off there before; that his reason for desiring to get off at the crossing was that he wished to visit a relative living near there; that, after the point was reached where the freight cars stood along...
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