Evansville Rys. Co. v. Miller
| Decision Date | 16 March 1916 |
| Docket Number | No. 8941.,8941. |
| Citation | 64 Ind.App. 206,111 N.E. 1031 |
| Parties | EVANSVILLE RYS. CO. v. MILLER. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Gibson County; Simon L. Vandeveer, Judge.
Action by Margaret E. Miller against the Evansville Railways Company. Judgment for plaintiff, and defendant appeals. Reversed, and new trial ordered.Funkhouser & Funkhouser, of Evansville, and John T. Ballard and Sanford Trippet, both of Princeton, for appellant. R. U. Baker, of Princeton, G. V. Menzies, of Mt. Vernon, and Embree & Embree, of Princeton, for appellee.
This is an appeal from a judgment in appellee's favor for $2,250 in an action brought by her to recover damages for the death of Lorenz Miller, her husband.
The complaint is in three paragraphs, to each of which a demurrer was filed, but, as the verdict and judgment below are based on the first and second paragraphs, they only will be considered. The averments common to both paragraphs and necessary to an understanding of the questions herein considered, briefly stated, are in substance as follows: Appellant operates an electric railroad in Posey county, Ind. On its line of road in said county is a flag station called St. Phillips, where appellant maintains a small building and a narrow platform for the embarkment of passengers on its cars when such cars are signaled to stop by such intended passengers. On the day in question, about 6 o'clock in the evening, and after dark, appellee's decedent was at said station on said platform intending to become a passenger on one of appellant's cars. Many other persons who also intended to become passengers on the same car were at the time on said platform. Such platform was small, and so filled with passengers that there remained little room to move about thereon, and decedent was forced to be near the edge thereof next to appellant's track when one of appellant's cars approached such station at a high and dangerous rate of speed, to wit, 45 miles per hour. Appellant's servants in charge of such car and the operation thereof negligently failed to have it and its machinery under control so that it might be stopped at said station. Appellant had carelessly and negligently constructed that part of its track in front of the platform so close thereto that the steps of passing cars projected very near to such platform, and appellant had carelessly and negligently constructed its track at such point in such a rough and uneven manner that its said car on the occasion in question in passing over such track at such high speed swayed and rocked from side to side, and the steps thereof swayed and projected over such platform in such manner that they would come in contact with and strike and injure a person standing near the edge of such platform. On the occasion in question, and under the conditions stated, appellee's decedent, being wholly ignorant of the dangerous and negligent construction of the platform, while so standing thereon as such passenger for the purpose of signaling for said car to be stopped “by setting fire to a paper and waiving the same over said track as said car approached in plain viewof the servants of the defendants in charge of said car, and while the same was yet at considerable distance from said platform, to wit, 500 feet, endeavored to signal to said servants to stop said car at said platform.” From this point the two paragraphs differ. The averments of the first are to the effect that appellant's servants, by looking in front of them as the car approached, could have seen, and hence did see, said signal in ample time to have stopped the car at the station; that they well knew the danger of running such car past the platform at high speed while persons were standing thereon; that such servants carelessly and negligently failed to look forward along said track in front of such car, and negligently and carelessly caused and permitted such car to run past such station and platform at said high and dangerous rate of speed, with the result that the steps of such car projected over said platform and struck the decedent and injured him from which injuries he died. The averments of the second paragraph differing from the first are as follows: Said car was provided with a headlight which cast a bright light in front thereof, and along said track for 500 feet, and by means thereof decedent, while standing upon said platform, was in plain view of appellant's servants in charge of said car, and said servants saw decedent, and knew that said car and the steps thereof would come in contact with and strike him unless said car should be stopped, or the speed thereof greatly decreased, before the same reached him; that said servants, in disregard of such knowledge, negligently and carelessly caused and permitted said car to run past said platform and said station at said high and dangerous rate of speed, and negligently and carelessly suffered and permitted said car and the steps thereof to come in contact with and strike decedent, etc.
Both paragraphs aver that decedent was at all times in the exercise of due care and caution, and was wholly ignorant of the danger of so standing upon said platform and of the fact that said steps projected so nearthe same, and that decedent's death was caused solely by the negligence of appellant and its servants, as herein alleged.
[1] It is very earnestly insisted by appellee that appellant's briefs present no question to this court for its consideration. A motion to dismiss the appeal, based on the same grounds, has been previously considered by this court and overruled without an opinion. Such ruling does not, of course, foreclose such question, but the court after further and full consideration of appellee's objections to such briefs, is of the opinion that as to some of the questions attempted to be presented therein they evidence a good-faith effort to comply with the rules of the court, and do, in fact, substantially comply therewith. Hence it becomes our duty under the rules and the construction placed thereon by the Supreme Court and this court to consider and determine such questions. Price v. Swartz, 49 Ind. App. 627, 97 N. E. 938;Chicago, etc., R. Co. v. Wysor Land Co., 163 Ind. 288, 69 N. E. 546, and cases cited; Magnuson v. Billings, 152 Ind. 177, 180, 52 N. E. 803;Griffith v. Felts, 52 Ind. App. 268, 99 N. E. 432;Johnson v. Brady, 109 N. E. 230; Repp v. Indianapolis, etc., R. Co., 111 N. E. 614.
[2] The ruling on the demurrer to each of the paragraphs of complaint is challenged by such briefs. The only objection to the first paragraph is that “it affirmatively shows that appellee's decedent was guilty of contributory negligence.” The averments common to both paragraphs, supra, which we have italicized and the law applicable thereto answer this contention. The general averment that appellee's decedent at the time he received his injury was in the exercise of due care, etc., makes such paragraph sufficient, unless it can be said that the facts specially averred show that he was guilty of negligence contributing to his injury. New York, etc., R. Co. v. Mushrush, 11 Ind. App. 192, 194, 37 N. E. 954, 38 N. E. 871;Evansville, etc., R. Co. v. Athon, 6 Ind. App. 295, 299, 33 N. E. 469, 51 Am. St. Rep. 303; Citizens' St. R. Co. v. Sutton, 148 Ind. 169, 173, 46 N. E. 462, 47 N. E. 462, and cases cited. The specific averments of such paragraph tend to support, rather than contradict, such general averment.
[3][4] One who is upon a station platform immediately before the arrival of a car, awaiting the arrival thereof with the intention of becoming a passenger thereon, is a prospective passenger, to whom the carrier operating such car owes the duty of ordinary care. Indianapolis, etc., R. Co. v. Wall, 54 Ind. App. 43, 101 N. E. 680;Pere Marquette R. Co. v. Strange, 171 Ind. 160, 164, 165, 84 N. E. 819, 85 N. E. 1026, 20 L. R. A. (N. S.) 1041, and authorities cited; Citizens' St. R. Co. v. Jolly, 161 Ind. 80, 67 N. E. 935;Citizens' St. R. Co. v. Twiname, Ill Ind. 587, 13 N. E. 55. Such prospective passenger is entitled to assume that so long as he occupies any part of such platform he is in no danger of being struck by a passing train or car, unless he has knowledge, actual or constructive, to the contrary, and such passenger cannot be charged with contributory negligence as a matter of law by reason of his taking a position on such...
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