Cleveland, Cincinnati, Chicago And St. Louis Railway Company v. Case
| Decision Date | 15 March 1910 |
| Docket Number | 21,307 |
| Citation | 91 N.E. 238,174 Ind. 369 |
| Parties | Cleveland, Cincinnati, Chicago and St. Louis Railway Company v. Case |
| Court | Indiana Supreme Court |
Rehearing Denied June 22, 1910.
From Superior Court of Tippecanoe County; Henry H. Vinton, Judge.
Action by Fred S. Case against the Cleveland, Cincinnati, Chicago and St. Louis Railway Company. From a judgment for plaintiff defendant appeals.
Reversed.
L. J Hackney, Stuart, Hammond & Simms, Allison E. Stuart and F. L. Littleton, for appellant.
Ryan & Ruckelshaus and Haywood & Burnett, for appellee.
This action was commenced by appellee on October 25, 1905, to recover damages arising out of the negligence of appellant company. The complaint is in two paragraphs. There is no substantial difference between the paragraphs so far as the alleged negligence on the part of said railroad company in running its train is concerned.
In the first paragraph it is alleged, among other things, that on October 31, 1903, a game of football had been arranged between the football teams of Purdue University, at LaFayette and the Indiana University, at Bloomington, to be played at the city of Indianapolis at 2 o'clock in the afternoon; that on said day about two thousand persons from LaFayette and Purdue University went over appellant's railroad to Indianapolis to witness the game; that, to accommodate this large number of persons, appellant company provided a special train, which was made up of twenty-five passenger-coaches, and was known as the "Purdue Special," and was to be run in two sections from the city of LaFayette to the city of Indianapolis; that the first section of this train, after passing into the limits of the city of Indianapolis, was run at the speed of thirty miles an hour, in violation of the speed ordinance of that city, which limited the speed of railroad trains to four miles an hour; that said section, while so running, collided with a cut of coal-cars, which cut was negligently run backwards by appellant on the same track; that appellee was a passenger from LaFayette on said section; that in the collision the engine of the train was thrown from the track and a number of the coaches of said special train, including the coach in which appellee was a passenger, were crushed and torn to pieces; that by reason of said collision, fourteen passengers were instantly killed and forty or fifty others were seriously injured. In respect to the injuries sustained by plaintiff, the complaint alleges that he, as the direct result of such collision, was thrown violently against the seats and sides of the coach and other hard substances in and about said coach, and was thrown from the coach in which he was riding upon the ground among the dead and wounded passengers, and that as a result thereof he received a severe nervous shock and was much bruised and wrenched; that the muscles of his back were bruised and wrenched, and there was also a concussion of the spinal cord, resulting in an affection of a permanent injury to the lumbar nerves and other nerves in the lumbar region of the body; that because of said injuries, plaintiff is unable to perform manual labor or to perform any labor that requires lifting or bending over, or quick motion of the body or legs. Plaintiff alleges that at the time he received said injuries he was nineteen years old, in good health, and had no deformity or injuries; that he was a freshman in Purdue University, and had entered said university to take a four years' course in civil engineering; that while he continued his studies in school, and was able to walk around and do light work, he has constantly suffered physical pain, and on account of said injuries he was compelled to quit school at the end of the first year, and that he has been and is now unable to do manual labor, or to do work that requires much sitting or stooping; that he has been rendered unable to enjoy life to the extent of being deprived largely of the use of his legs and body, and has been permanently disabled and subjected to great physical and mental suffering, and that by reason of all of which, and by reason of the negligent acts of defendant as averred, he has been damaged in the sum of $ 15,000, for which he demands judgment.
The answer of appellant was a general denial. There was a trial by jury and a verdict returned in favor of appellee, assessing his damages in the sum of $ 7,000. Over appellant's motion for a new trial, the court rendered judgment upon the verdict.
The assignments relied upon by appellant for reversal are (1) that the verdict is not sustained by sufficient evidence; (2) that the court erred in admitting and rejecting evidence; (3) that the court erred in the giving and in refusing to give certain instructions; (4) that the damages were excessive.
It appears from the evidence that appellee attained the age of twenty-one years on May 9, 1905.
The negligence of appellant, leading up to the collision, is conceded by its counsel, but their insistence is that there is an entire absence of any evidence to establish that appellee, by reason of the accident in question, received any physical injury whatever. It is argued that the evidence affirmatively shows that he received no such injury, but that the nervous condition and ailments of which he complains existed prior to the accident, and were only aggravated by reason of his being frightened and greatly excited because of the sudden collision and matters incident thereto.
Appellee in his testimony upon the trial gave his version of what happened at the time of the collision, substantially as follows: He was in the third coach back of the engine, seated with another passenger named Haywood. At the time of the collision there was a crash, and the next thing he recalled he was getting up out of a pit on the outside of the car. He remembered seeing dead bodies around him in the pit. (The pit, mentioned by him, was an excavation down the embankment at a point where the coach he occupied was standing at the time of the collision.) He did not remember anything about what happened in the coach, all he remembered was getting up from the pit, and the next thing he remembered he was down in the city of Indianapolis, but he had no recollection as to how he got to the city. In some manner he got some blood on his trousers, not from his person, however, but from other persons. He met two of his friends in Indianapolis, and they went with him to a tailor's to have his trousers cleaned. He could not recall any conversation he had with the two men. He sent a telegram to his mother at LaFayette, and stated in the telegram that he was not injured. It appears that the point where he met his friends in the city of Indianapolis was on Illinois street, south of the Claypool hotel about three miles from the place where the collision occurred. Further testifying, he said:
The two friends to whom appellee referred as meeting down in the city of Indianapolis testified that they met him between the Claypool hotel and the Union Station about 1 o'clock, that when they met him he did not seem to be hurt; he was walking and was excited and nervous. Appellee's evidence shows that until he was about sixteen years of age he was "puny," but after that time he became rugged; that up to the age of fifteen he had trouble with his stomach. He commenced his studies at Purdue University about the seventh or tenth of September, 1903. His studies consisted of solid geometry, English, German, mechanical drawing, forge work and shop lectures. In a day or two after the accident in question it appears he returned to school at Purdue and pursued his studies. He performed some manual labor in the shop at the university in connection with his studies, and continued as a student at that institution in the freshman class until the close of the school year in 1904. Thereafter, as the evidence shows, he went to his father's farm and performed some farm work such as plowing corn and operating a cultivator, etc. In the fall of 1904 he husked corn. He complained during the time of being sore. In his conversation with his friends he said that he was one of the lucky persons in the wreck that did not get hurt by the collision, that he considered his escape as miraculous.
The evidence which we have set out, together with other facts, we believe presents a singular case, or at least one out of the ordinary. As to the sufficiency of the...
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