Evansville & Terre Haute Railroad Company v. Athon
| Decision Date | 02 March 1893 |
| Docket Number | 704 |
| Court | Indiana Appellate Court |
| Parties | EVANSVILLE & TERRE HAUTE RAILROAD COMPANY v. ATHON |
From the Vigo Superior Court.
Judgment affirmed.
J. E Iglehart, E. Taylor, S. B. Davis, J. C. Robinson and S. M Reynolds, for appellant.
J. Jump, J. E. Lamb, J. C. Davis, C. McNutt and J. G. McNutt for appellee.
The substance of the material averments contained in the complaint is stated by counsel for appellant as follows:
The complaint charges that appellee, for the purpose of assisting his invalid daughter on the cars of appellant, at the city of Terre Haute, on May 4, 1891, went to the station in said city, and to said cars, and with the agreement with appellant that the said cars would stop long enough to enable him to place his daughter on the train and to alight therefrom in safety. Relying on the said agreement and promise, he placed his daughter on the train, and proceeded to leave the same without delay. But before he could leave the car, the said train was negligently and wrongfully caused to be slowly moved forward. That he thereupon notified the agents, employes and servants of appellant in charge of said train, to stop the same that he might get off. They agreed and undertook to do so, and one of them pulled the signal cord for that purpose, but it had not been properly connected, and the signal attempted was not given, and the train did not slow or stop, but continued in motion; and at a time after the pulling of the signal cord, within which the train could have reasonably been stopped, had the signal reached the engineer, the agent who attempted to give the signal to stop, negligently and wrongfully directed and commanded appellant to alight from the train while it was in motion.
This was in the night, and it was very dark, by reason of which appellee could not see and did not know that the train was in motion, and stepped therefrom as directed and commanded.
He believed the signal had actually been given, and received by the engineer, and that in obedience thereto the engineer had stopped the train, and especially the car he was on. In stepping from the car, by the motion thereof, he was thrown to the ground and injured.
All the facts stated constituted negligence on the part of appellant, and claim is made that there was no fault or contribution on the part of appellee.
To this complaint a demurrer was filed, which was overruled, and exception taken.
It is insisted that the demurrer to the complaint should have been sustained.
The contention of counsel for appellant is that the facts alleged in the complaint affirmatively show, that the unreasonable and inexcusable act of appellee in attempting to get off the moving train, under the circumstances, was the proximate cause of his injuries; that the general averment that he was without fault or negligence does not negative the proposition, which it is urged is disclosed on the facts stated in the complaint, that the danger was not known or could not have been known by appellee, in the exercise of reasonable care and prudence, and thereby have been avoided.
It is well settled, that under the allegations in the complaint the relation of passenger and carrier existed between appellee and appellant, at the time of the acts complained of; that a carrier is required to exercise the highest degree of care to secure the safety of its passengers, and is responsible for the slightest neglect, if an injury is caused thereby; and that a carrier's duty is not ended with carrying a passenger safely from one point to another, but such carrier must set the passenger down safely, if in the exercise of the utmost care it can be done. Louisville, etc., R. R. Co. v. Crunk, 119 Ind. 542, 21 N.E. 31; Sherlock v. Alling, Admr., 44 Ind. 184; Thayer v. St. Louis, etc., R. R. Co., 22 Ind. 26; Terre Haute, etc., R. R. Co. v. Buck, Admx., 96 Ind. 346.
It has been held that it is negligence for an officer of a railroad to induce a passenger to leave a train while in motion. Bucher v. N. Y. Central, R. R. Co., 98 N.Y. 128; Filer v. N. Y. Central, R. R. Co., 49 N.Y. 47.
The important question for our present inquiry is, whether the complaint shows that appellee was not in fault.
It has been held that knowledge of danger is not always conclusive evidence of contributory negligence, although the fact of such knowledge may have an important bearing upon that question. Ohio, etc., R. W. Co. v. Trowbridge, 126 Ind. 391, 26 N.E. 64; Evansville, etc., R. R. Co. v. Crist, 116 Ind. 446, 19 N.E. 310; Town of Poseyville v. Lewis, 126 Ind. 80, 25 N.E. 593.
It has also been decided that it is not negligence per se for a passenger to step from a moving train, especially where the passenger is acting under the directions of the trainmen. Louisville, etc., R. R. Co. v. Crunk, supra; Bucher v. N. Y. Central R. R. Co., supra; Filer v. N. Y. Central R. R. Co., supra.
The general averment that the appellee was without fault is controlling, unless it clearly and affirmatively appears from the other facts alleged in the complaint that he was guilty of contributory negligence. The court must be able to say, as a matter of law from the specific averments, that appellee was guilty of contributory negligence, or else the general averment that appellee was free from fault will make the complaint good as to that point. Kentucky, etc., Bridge Co. v. Quinkert, 2 Ind.App. 244, 28 N.E. 338; Town of Rushville v. Adams, 107 Ind. 475, 8 N.E. 292; Pittsburgh, etc., R. W. Co. v. Wright, 80 Ind. 182; City of Franklin v. Harter, 127 Ind.446, 26 N.E. 882; Louisville, etc., R. W. Co. v. Stommel, 126 Ind. 35, 25 N.E. 863; Pennsylvania Co. v. O'Shaughnessy, Admr., 122 Ind. 588, 23 N.E. 675; City of Elkhart v. Witman, 122 Ind. 538, 23 N.E. 796.
The averments in substance are, that while appellee was on the train, the same moved slowly forward, whereupon appellee asked the trainmen to stop the train that he might alight in safety; that the trainmen undertook to stop the train, and that one of them pulled the whistle rope to signal the engineer to stop; "that at a time after pulling said signal rope--within which the train might and could reasonably have stopped, had the signal reached the engineer,"--said agent, who had pulled the signal rope, directed appellee to alight; that it was in the night time, and was very dark; that by reason thereof appellee could not see and did not know that said train was in motion, and stepped therefrom as directed, and in obedience to such direction; that said appellee at the time believed that the said signal attempted to be given had been actually given, and had reached the engineer, and he further believed that said engineer had, in obedience to said supposed signal, stopped said train.
It may be stated as a general proposition that when the conductor or brakeman, on the train, who is presumed to be familiar with the danger incident to getting on or off slowly moving trains, directs a passenger, who may be ignorant of such danger, to get off the train, although in motion, such passenger will ordinarily naturally presume that the conductor or brakeman knows that it is entirely safe, or he would not give the direction. Filer v. N. Y. Central, R. R. Co., supra; Cincinnati, etc., R. R. Co. v. Carper, 112 Ind. 26, 13 N.E. 122; Louisville, etc., R. R. Co. v. Kelly, 92 Ind. 371; Kentucky, etc., Bridge Co. v. Quinkert, supra.
The question whether such act is of itself contributory negligence depends in each case on the surrounding circumstances. Terre Haute, etc., R. R. Co. v. Buck, Admx., supra.
The act of getting on or off a moving train should not be encouraged. If the passenger is aware of the danger, or the danger could be known to him, in the exercise of reasonable care and prudence, such act will ordinarily constitute contributory negligence.
In view of the general averment that appellee was without fault, the court can not say, as a matter of law, on the specific facts alleged in the complaint, that appellee was, under the circumstances stated, guilty of contributory negligence on the occasion when he was injured. Terre Haute, etc., v. Buck, supra; Pool v. Chicago, etc., R. W. Co., 56 Wis. 227, 14 N.W. 46; Chicago, etc., R. R. Co. v. Barnes, 2 Ind.App. 213, 28 N.E. 328; Columbus, etc., R. W. Co. v. Farrell, 31 Ind. 408, and authorities hereinbefore cited.
In the case of Cincinnati, etc., R. R. Co. v. Peters, 80 Ind. 168, there was no general averment that the plaintiff was free from contributory negligence.
Our conclusion is that the court did not err in overruling the demurrer to the complaint.
The next question discussed relates to the sufficiency of the evidence to sustain the verdict. The basis of the argument of counsel for appellant is stated by them as follows:
The evidence tends to...
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