Harris v. Pittsburg, C., C. & St. L. Ry. Co.

• Decision Date: 17 March 1904
• Citation: 70 N.E. 407,32 Ind.App. 600
• Parties: HARRIS v. PITTSBURG, C., C. & ST. L. RY. CO.
• Court: Indiana Appellate Court

32 Ind.App. 600

70 N.E. 407

HARRIS

v.PITTSBURG, C., C. & ST. L. RY. CO.¹

Appellate Court of Indiana, Division No. 2.

March 17, 1904.

Appeal from Circuit Court, Clark County; Jas. K. Marsh, Judge.

Action by Lloyd Harris against the Pittsburg, Cincinnati, Chicago & St. Louis Railway Company. From a judgment in favor of defendant, plaintiff appeals. Reversed.

H. W. Phipps and L. A. Douglas, for appellant. M. Z. Stannard, for appellee.

ROBY, J.

In this action appellant sought to recover damages alleged to have been caused by the negligence of appellee, a railroad corporation. He is averred to have been a passenger upon one of appellee's passenger trains running from Louisville, Ky., to Jeffersonville, Ind. Pearl street, in said last-named city, was a regular stopping place, and was announced by those in charge of the train, which stopped to discharge and receive passengers. Appellant avers that he then stepped from the lower step of the rear end of the coach in which he was riding upon the platform provided by appellee for such use. It is further averred that said platform was heavily covered with ice and sleet, which appellee had negligently permitted to remain thereon for a period of 10 days prior thereto, failing to remove the same, and thereby negligently failing to make said platform reasonably safe for passengers to alight upon; that when stepping from said train he stepped upon such ice and sleet, which caused his feet to slip from under him, inflicting the injuries complained of; which are averred to have been the direct result of appellee's said negligence. He further says that he did not know that said ice and sleet were on the platform, and that appellee's servants failed to inform him of the same, wherefore, etc. The issue was formed by a general denial, the cause submitted to a jury, and upon the conclusion of the evidence the court, upon appellee's motion, instructed the jury to return a verdict in its favor.

Appellant's motion for a new trial was overruled, and such action is assigned as error. The only question which need be considered relates to the giving of the peremptory instruction, and that involves a consideration of the evidence. The specific negligence counted upon is that the appellee allowed its platform to be unsafe, by reason of which appellant slipped and fell at the time he alighted from said train. The action of the court in giving the peremptory instruction was based upon the hypothesis that the evidence established contributory negligence, and it is not, therefore, necessary to consider the evidence except as it relates to that subject. The testimony of appellant was as follows: “I was sitting about middle ways of the car, and when they stopped I got up and started out to the platform, and as I got to the platform the train kind a moved off, but I started on down the steps, and when I got to the bottom I put my right foot down to the ground, and when I went to put the other foot down my feet both went from under me, and my shoulder went this way. I think the forward end of the second coach struck my shoulder and threw me forward.” His further testimony was, in effect, as follows: The platform was dark. It was dark around the place where the cars stopped. He could see the ground. The ice made him slip. He did not see the ice when he stepped off the coach. “When I came down, the train started to move, and I had my hands on both the handles; and when I got down I put my right foot down, and I stepped with my left, and when I let go my feet went from under me. Q. You say the train was moving some when you got off? A. Yes, sir. Q. How fast? A. The engine had just started up. Q. About what rate of speed would you say the train was going when you alighted from the train? A. About half a mile an hour. The engine kind a set onto the curve.” There were lights in the train and in the depot, and an electric light in the rear of the train as it stopped, which would ordinarily illuminate the platform, but, owing to the train standing between it and the platform, did not do so at this time; the place where the appellant alighted being in the shadow so made, which extended four feet from the train. He knew that the streets and unprotected places in Jeffersonville were covered with ice and sleet. He was familiar with the locality and with appellee's train service. There was no roof over the platform. He could have alighted at the Wall Street Station, 600 feet further on. The point where appellant fell was about 15 or 20 feet east of the station building. It was in evidence that on three occasions during that “icy spell” one of appellee's employés spread ashes on the platform. It was the duty of appellee to provide a safe place for its passengers to alight. Ill., etc., R. v. Cheek, 152 Ind. 669, 53 N. E. 641, and cases; Louisville, etc., R. Co. v. Lucas, 119 Ind. 590, 21 N. E. 968, 6 L. R. A. 193;Penn. R. v. Marion, 123 Ind. 418, 23 N. E. 973, 7 L. R. A. 687, 18 Am. St. Rep. 330;Lucas v. Penn. Ry., 120 Ind. 205, 21 N. E. 972, 16 Am. St. Rep. 323.

The appellee's first...