Glenn v. Lake Erie & W.R. Co.

• Decision Date: 17 March 1905
• Docket Number: No. 4,993.,4,993.
• Citation: 73 N.E. 861
• Court: Indiana Appellate Court
• Parties: GLENN v. LAKE ERIE & W. R. CO.

73 N.E. 861

GLENN

v.LAKE ERIE & W. R. CO.

No. 4,993.^*

Appellate Court of Indiana, Division No. 1.

March 17, 1905.

Appeal from Circuit Court, Warren County; Joseph M. Rabb, Judge.

Action by James Glenn against the Lake Erie & Western Railroad Company. From a judgment in favor of defendant, plaintiff appeals. Reversed.

Thompson & Storms and C. V. McAdams, for appellant. John B. Cockrum and Stuart, Hammond & Simms, for appellee.

MYERS, J.

This was an action by appellant against appellee to recover damages on account of injuries received by falling over a railroad tie alleged to have been so situated on appellee's depot grounds as to obstruct the path used by passengers leading from its passenger station at the town of Dayton, Ind., to a public highway. This cause, originally begun in The Tippecanoe circuit court, was on change of venue, before a jury, tried in the Warren circuit court. After submission of all the evidence and argument of counsel heard, the court peremptorily instructed the jury to return a verdict for the defendant, which was accordingly done, and judgment rendered in favor of appellee on the verdict. Appellant's motion for a new trial was by the court overruled, and this ruling appellant assigns as error in this court.

By this appeal the only question presented for our consideration is, did the court err in so instructing the jury? We have carefully read and re-read all the evidence in the record, and from it we glean the following facts: On October 19, 1900, appellant was a passenger on one of appellee's passenger trains from the city of Lafayette, Ind., to the town of Dayton, Ind., the place of his residence. That on said date, at about 7:30 p. m., he arrived at appellee's passenger depot at said town of Dayton, and the only place by appellee maintained for the purpose of receiving and discharging passengers. That he safely alighted on the platform of appellee's depot, and, with some friends, went into the office or waiting room there provided by appellee for passengers. That at the time of his arrival it was dark, and no artificial lights were maintained at that time or theretofore at said depot or at any other point to light up appellee's premises, except the one in the office or waiting room. That he was returning home from a two-days trip to the city of Lafayette, where he had drank freely of intoxicants, and still enjoying its exhilarating effects, but was in no wise incapacitated in locomotion or from using proper care for his own safety. That on alighting from the train he left the platform, and went into the office or waiting room of appellee, where, in company with some or his acquaintances, he spent from 10 to 15 minutes telling stories, singing songs, and otherwise amusing himself. It does not appear that appellee or any of its employés or servants invited him into said waiting room, nor was he there on account of any business whatever with appellee, but remained there solely from his own preference and free will. That said depot was located on the right of way or grounds of appellee about 300 feet west of Jackson street, a thoroughfare leading to the business portion of the town of Dayton. That the only way of ingress and egress to and from appellee's depot was over its right of way from Jackson street. That over the north half of appellee's right of way was a wagonway, sometimes used by foot passengers, leading from the north side of appellee's platform to Jackson street. That said platform extended about 45 feet east of appellee's depot building. That the east end of said platform, two steps down, connected with a path on the north side of a spur track, which was commonly used by foot passengers in going to and returning from Jackson street to said depot. This footpath and wagonway practically parallel each other from the east end of said platform. Said path was about four or five feet wide at the east end of the platform, but within a few feet-the exact distance does not appear-it narrowed down to about two feet. That appellant, in company with a friend, on leaving said waiting room, went east along said platform, down the steps at the east end thereof, onto the path leading almost directly east to Jackson street, then diagonally across to the northeast from said path toward said roadway. That before reaching the roadway he fell over a cross-tie, described as being 16 feet long and about 7 inches thick and 10 to 12 inches wide, breaking his leg. Said cross-tie was placed at the point where appellant received his injury by appellee's employés on October 10th, eight days before the day the accident happened. That for a period of 15 years appellant had been fully acquainted with appellee's depot and depot grounds, but did not know of the cross-tie which caused his injury.

There is very little, if any, conflict in the evidence as to the facts as above stated. As to whether or not there was a path along the course appellant took that night leading from the spur path over to the roadway, and as to the fact whether or not passengers to or from said depot ever took the course pursued by appellant on that night, there is sharp conflict in the evidence. Four or five witnesses positively testified that there was such a path, and that passengers and others going to and from said depot frequently went that way, and appellant and his associate testified that they were upon said path when the accident happened, and that the tie over which appellant fell was lying across it; while, on the other hand, five witnesses for appellee positively testified that there was no such path, and that persons going to and from said depot either followed the railroad track, the spur track, or the path along the north side of the spur track, or the wagonway, and that the place where appellant fell was a grass plat, and not used by the public as a way of ingress or egress to said depot. On this question it appears that the lower court limited the number of witnesses on each side to five. It follows from these undisputed facts (1) that appellee was, on the day the accident happened, a common carrier of passengers for hire; (2) that appellant was a passenger of appellee at the time he alighted on the platform at the town of Dayton, and appellee owed him the duty of exerting every reasonable care for his protection and safe exit to Jackson street, provided this duty imposed by law on appellee was not waived by appellant. Certain obligations rest upon every carrier of passengers in favor of its patrons, not from any contractual relation, but imposed by law, and which the carrier cannot by contract evade. It cannot refuse to accept and carry persons offering themselves as passengers, who have complied or offered to comply with its reasonable rules and regulations. It cannot contract against liability for its own fraud or negligence; but before a passenger can take advantage of the security provided for him by law he must himself be without fault contributing to the cause for which he seeks indemnity. As a general rule, where a railroad company is engaged in carrying passengers for hire, it may be said that, once the relation of carrier and passenger exists, this relation continues until the passenger has had a reasonable opportunity (1) to safely alight from the train at his destination, and at the place provided by the company for the discharge of passengers; and (2) to leave the premises of the company in the direction ordinarily taken. Terre Haute, etc., R. R. Co. v. Buck, 96 Ind. 346, 49 Am. Rep. 168;Jeffersonville, etc., Co. v. Parmalee, 51 Ind. 42;McKimble v. Boston, etc., R. Co., 139 Mass. 542, 2 N. E. 97;Gaynor v. Old Colony R. Co., 100 Mass. 208, 97 Am. Dec. 96;Burnham v. Wabash, etc., Co., 91 Mich. 523, 52 N. W. 14;Grimes v. Pennsylvania Co. (C. C.) 36 Fed. 72;Greene v. Pennsylvania R. Co. (C. C.) 36 Fed. 66; Beach on Law of Railway, §§ 856, 859; Baldwin's Am. Ry. Law, p. 327; Elliott on Railroads, § 1592. It is also a fixed rule that a railway carrier of passengers is chargeable with the highest degree of care in providing safe cars, engines, machinery, and appliances for the protection and safety of its passengers, and must respond for the slightest neglect of this duty; yet it is only held to a reasonable degree of care in providing and keeping in a safe condition its depots, depot approaches, platforms, and depot grounds over which its passengers travel to and from the places provided to take on and let off passengers. In this regard the degree of care required does not stop short of every reasonable provision for the safety and protection of its patrons, keeping in mind the nature of the business and the place where carried on. Such care may, from the location of its depot, require the company to furnish sufficient light at night, for a reasonable time before the arrival and after the departure of its passenger trains, to enable passengers to safely enter its depot grounds and trains, as well as to depart therefrom. The Louisville, N. A., etc., Ry. Co. v. Treadway, 143 Ind. 689, 40 N. E. 807, 41 N. E. 794; The Terre Haute, etc., R. R. Co. v. Buck, supra; The Louisville, etc., Ry. Co. v. Treadway, 142 Ind. 475, 40 N. E. 807, 41 N. E. 794; The Louisville, etc., Ferry Co. v. Nolan, 135 Ind. 60, at page 64, 34 N. E. 710, at page 711; The Jeffersonville, etc., R. R. Co. v. Hendricks' Adm'r, 26 Ind. 228; The Pennsylvania Co. v. Marion, 104 Ind. 239, 3 N. E. 874; The Pennsylvania Co. v. Marion, 123 Ind. 415, 23 N. E. 973, 7 L. R. A. 687, 18 Am. St. Rep. 330. The Louisville, etc., Co. v. Lucas, 119 Ind. 583, 21 N. E. 968, 6 L. R. A. 193;The New York, etc., Co. v. Mushrush, 11 Ind. App. 192, 37 N. E. 954, 38 N. E. 871;Texas v. Pacific, etc., Co. v. Miller, 79 Tex. 78, 15 S. W. 264, 11 L. R. A. 395, 23 Am. St. Rep. 308;Boss v. The Providence, etc., Co., 15 R. I. 149, 1 Atl. 9;Rozwadosfskie v. International, etc., Co., 1 Tex. Civ. App. 487, 20 S....