Indiana, Bloomington and Western Railway Co. v. Burdge

• Decision Date: 08 March 1884
• Docket Number: 11,207
• Citation: 94 Ind. 46
• Parties: The Indiana, Bloomington and Western Railway Company v. Burdge
• Court: Indiana Supreme Court

94 Ind. 46

The Indiana, Bloomington and Western Railway Company v. Burdge

No. 11,207

Supreme Court of Indiana

March 8, 1884

From the Superior Court of Marion County.

C. W Fairbanks, A. C. Harris and W. H. Calkins, for appellant.

E. A Parker, for appellee.

OPINION

Bicknell C. C.

The complaint of the appellee alleged that the plaintiff, who was a day laborer, took passage on one of the defendant's trains at the Western Elevator, west of White river, in Marion county, intending to ride thereon to the Union depot, in Indianapolis; that he paid his fare; that it was the custom of such passengers on said train, with the knowledge and consent of those in charge of the train, to ride upon the platforms outside of the car, and pay their fares there; that plaintiff, in accordance with such custom, and with such knowledge and consent, was standing on such a platform; that in the corporate limits of the city of Indianapolis, and while the speed of the train was more than ten miles an hour, the train was almost entirely stopped to give time for the adjustment of a switch, and that immediately after such adjustment the defendant's engineer on said train, in a wilful, reckless, careless and unlawful manner, let on such a volume of steam to the engine as caused said train to jump and jerk into immediate movement at a very high and unlawful rate of speed in said city, whereby the plaintiff, without his fault, was thrown violently to the ground and his collar bone was broken, and other personal injuries were by him sustained, to his damage $ 5,000.

A demurrer to this complaint, for want of facts sufficient, was overruled. The defendant answered by a general denial. A jury, at the special term, returned a verdict for the plaintiff for $ 250. The defendant's motion for a new trial was overruled; judgment was rendered on the verdict. The defendant appealed to the superior court in general term, assigning for error there the overruling of the demurrer to the complaint and the overruling of the motion for a new trial. The court, in general term, affirmed the judgment of the court in special term. The defendant appeals to this court, and assigns for error here the affirmance by the superior court in general term of the judgment at the special term. As the complaint charges a wilful injury, it presents no question as to contributory negligence. Terre Haute, etc., R. R. Co. v. Graham, 46 Ind. 239; Jeffersonville, etc., R. R. Co. v. Goldsmith, 47 Ind. 43; Evansville, etc., R. R. Co. v. Lowdermilk, 15 Ind. 120. A railroad company may be liable for the wilful acts of its employees, within the scope of their employment. Jeffersonville R. R. Co. v. Rogers, 38 Ind. 116 (10 Am. R. 103); Indianapolis, etc., R. R. Co. v. McClaren, 62 Ind. 566. There was no error in overruling the demurrer to the complaint.

The principal question arising on the motion for a new trial is was the verdict sustained by sufficient evidence? A verdict can not be disturbed where there is any competent evidence tending to support it. Under the allegations of the complaint here, there could be no recovery unless the injury were proved to have been wilful. We...