Indianapolis Southern Railroad Company v. Emmerson

• Decision Date: 19 June 1912
• Docket Number: 7,581
• Citation: 98 N.E. 895,52 Ind.App. 403
• Parties: INDIANAPOLIS SOUTHERN RAILROAD COMPANY v. EMMERSON
• Court: Indiana Appellate Court

98 N.E. 895

52 Ind.App. 403

INDIANAPOLIS SOUTHERN RAILROAD COMPANY v. EMMERSON

No. 7,581

Court of Appeals of Indiana

June 19, 1912

Rehearing denied December 31, 1912. Transfer denied February 13, 1913.

From Monroe Circuit Court; James B. Wilson, Judge.

Action by Maude E. Emmerson, by her next friend, Sarah E. Yockey against the Indianapolis Southern Railroad Company. From a judgment for plaintiff, the defendant appeals.

Affirmed.

Duncan & Batman, James E. Kepperley, Robert G. Miller and James W. Blair, for appellant.

Joseph E. Henley, Rufus H. East and Anderson Percifield, for appellee.

OPINION

HOTTEL, C. J.

Appellee recovered a judgment in the court below for $ 5,000 for injuries which she alleged she received by being thrown from one of appellant's trains when a passenger thereon. The cause was tried by a jury which returned a general verdict for appellee in the above amount, with answers to interrogatories.

Appellant's demurrer to the complaint, its motion for judgment on the answers to interrogatories and for a new trial were each overruled, and these rulings present the alleged errors assigned and relied on.

That part of the complaint necessary to present the objection made thereto and other questions presented by the appeal is, in substance, as follows: That when said train was about half a mile east of Trevlac, said defendant, by its agents in charge of said train, sounded the whistle for said station, and materially checked the speed of said train as it approached a sharp curve then and there in defendant's railroad track at said point; that thereupon said agents aforesaid passed through the train and through the coach in which this plaintiff was riding, and twice announced in a loud tone of voice "Trevlac"; that at said time said train was passing over said sharp curve, and the speed was greatly reduced as though said train was about to come to a stop; that it was then dark, and the plaintiff, observing lights in houses near the track, believed she was very near said station; that so believing, she arose from her seat, took up her baggage, consisting of a suit case and a hat, walked down the aisle between the seats in said coach to the rear end thereof, in the same direction the servant of said defendant had gone as he announced said station; that plaintiff stopped when near the last seat in said coach, and while so standing in said coach at said point near the rear door of said coach, waiting for said train to come to a full stop at said station, and while in the exercise of due care for her own safety, and without any fault on her own part and without any notice or warning whatever, said defendants, by its agents in charge of said train, carelessly and negligently and with great force and violence so negligently managed and operated said train as to cause the coach in which said plaintiff was riding to be suddenly and violently jerked forward, the speed thereof suddenly and violently increased, causing said coach and train to be instantly drawn forward with a lurch, and thereby this plaintiff, by reason of such negligence, was instantly jerked and thrown from her position out of the rear door of said car, and was suddenly and violently jerked and thrown from said car and off said train while it was thus running at such greatly-increased and high and dangerous rate of speed, causing her to fall and be thrown into a cattle-pit and against some fencing on defendant's right of way, with great force and violence, from which she sustained permanent and lasting injuries; that plaintiff at the time of her injuries was almost wholly without experience in riding on trains, having been a passenger on trains only two or three times in her life, and did not know anything about the management and operation of passenger trains; that as she approached the station of Trevlac on said train, and at the time she left her seat to go to the rear of said car, she was led to believe and did believe the train was very near said station; that she was unacquainted with defendant's track at said point, and said defendant's servant having passed through said coach and having twice called "Trevlac", and having opened the doors of said coach, thereby inviting passengers to leave the train, and knowing that said train stopped at the small stations only a few seconds, she believed that it was necessary for her to get her baggage and go to the rear of the coach to alight from said train; that by custom and usage on defendant's line, passengers desiring to alight at the small stations, such as Trevlac, took up their baggage and made preparations to leave the train as soon as such stations were called, and so believing, plaintiff walked to the rear of said coach, as aforesaid. Plaintiff further avers that said defendant, its agents and servants in charge of said train, well knowing such custom, and that passengers were preparing to leave said train at said station on said date, and knowing that passengers were likely to be standing in the aisles, negligently, unnecessarily and suddenly increased the speed of said train and unnecessarily and negligently jerked said coach as aforesaid and thus threw her from said car and said train, injuring her as aforesaid.

The objection urged to the complaint is that (we quote from appellant's brief) "there is no charge of bad track, defective equipment, incompetent servants, or of any mishap to the train, the car, the crew, or the passengers. There is no allegation of a collision, derailment, break, or any accident to the train or to any part thereof, or to a single passenger of the train, or to any one operating it, or to any one connected with it except appellee. * * * Saying a thing is negligent does not make it so. It requires the statement of some act which is averred to have been improperly done. * * * The fact of the plaintiff's injuries would not raise a presumption of the defendant's negligence."

Appellant either misconstrues the cases cited and relied on in support of its contention, or fails to give proper force and effect to the averments of the complaint.

"By the sale of a ticket, or the receipt of the price for transportation, from one point to another, a railway company expressly contracts to carry such person to the point covered by the contract, and in addition to that, a contract arises by implication, between the company and the passenger, that the latter shall be carried safely, so far as human foresight, reasonably exercised, can guard against disaster." Kentucky, etc., Bridge Co. v. Quinkert (1891), 2 Ind.App. 244, 247, 28 N.E. 338; 2 Wood, Railway Law 1178. See, also, Grand Rapids, etc., R. Co. v. Ellison (1889), 117 Ind. 234, 237, 20 N.E. 135; Prothero v. Citizens' St. R. Co. (1893), 134 Ind. 431, 439, 33 N.E. 765; Knauss v. Lake Erie, etc., R. Co. (1902), 29 Ind.App. 216, 219, 64 N.E. 95. In such cases the carrier is required to exercise the highest degree of care to secure the safety of passengers and is responsible for the slightest neglect which is the proximate cause of injury to a passenger who is himself without fault. Kentucky, etc., Bridge Co. v. Quinkert, supra; Sherlock v. Alling (1873), 44 Ind. 184; Louisville, etc., R. Co. v. Kelly (1884), 92 Ind. 371, 47 Am. Rep. 149; Bedford, etc., R. Co. v. Rainbolt (1885), 99 Ind. 551; Louisville, etc., R. Co. v. Thompson (1886), 107 Ind. 442, 8 N.E. 18, 9 N.E. 357, 57 Am. Rep. 120; Grand Rapids, etc., R. Co. v. Ellison, supra; Louisville, etc., R. Co. v. Snyder (1889), 117 Ind. 435, 20 N.E. 284, 3 L. R. A. 434, 10 Am. St. 60; Louisville, etc., R. Co. v. Lucas (1889), 119 Ind. 583, 21 N.E. 968, 6 L.R.A. 193; Thompson, Carriers 200-204; Cincinnati, etc., R. Co. v. Worthington (1903), 30 Ind.App. 663, 666, 65 N.E. 557, 66 N.E. 478, 96 Am. St. 355; Terre Haute, etc., R. Co. v. Buck (1884), 96 Ind. 346, 49 Am. Rep. 168; Jeffersonville R. Co. v. Hendricks' (1866), 26 Ind. 228; Cleveland, etc., R. Co. v. Hadley (1908), 170 Ind. 204, 207, 82 N.E. 1025, 84 N.E. 14, 16 L. R. A. (N. S.) 527, 16 Ann. Cas. 1; Pere Marquette R. Co. v. Strange (1908), 171 Ind. 160, 165, 84 N.E. 819, 85 N.E. 1026, 20 L. R. A. (N. S.) 1041.

The sudden or violent motion or jerking of a train may be negligence. Kentucky, etc., Bridge Co. v. Quinkert, supra, 244, 249; Louisville, etc., R. Co. v. Crunk (1889), 119 Ind. 542, 21 N.E. 31, 12 Am. St. 443; 2 Wood, Railway Law 1125; Dougherty v. Missouri R. Co. (1884), 81 Mo. 325, 51 Am. Rep. 239; Wood v. Lake Shore, etc., R. Co. (1882), 49 Mich. 370, 13 N.W. 779; Cincinnati, etc., R. Co. v. Revalee (1897), 17 Ind.App. 657, 671, 672, 46 N.E. 352; Consolidated Traction Co. v. Thalheimer (1896), 59 N.J.L. 474, 37 A. 132.

The complaint shows that the sudden jerking of the train, alleged to be negligent, was after appellant's agents had called the station for which appellee had purchased her ticket, and at a time when, according to usage and custom, passengers were making preparations to leave the train at said station, and that the agents of appellant, "well knowing such custom and that passengers were preparing to leave said train at said station on said date, and knowing that passengers were likely to be standing in the aisles, negligently, unnecessarily and suddenly increased the speed of said train and unnecessarily and negligently jerked said coach," etc.

The negligent operation of the train by appellant's servants the manner of such negligent operation, and appellee's injury, resulting as a consequence, are averred. These general averments of negligence and their causal connection with the injury are sufficient as against a demurrer, unless the specific averments overcome their effect. Pittsburgh, etc., R. Co. v. Richardson (1907), 40 Ind.App. 503, 82 N.E. 536; Standard Forgings Co. v. Saffel...