Lake Erie And Western Railroad Co. v. Matthews

• Decision Date: 29 October 1895
• Docket Number: 1,611
• Citation: 41 N.E. 842,13 Ind.App. 355
• Parties: LAKE ERIE AND WESTERN RAILROAD COMPANY v. MATTHEWS
• Court: Indiana Appellate Court

41 N.E. 842

13 Ind.App. 355

LAKE ERIE AND WESTERN RAILROAD COMPANY v. MATTHEWS

No. 1,611

Court of Appeals of Indiana

October 29, 1895

From the Madison Circuit Court.

Judgment affirmed.

W. E Hackedorn, J. B. Cockrum and Chipman, Keltner & Hendee for appellant.

J. C Blacklidge, C. C. Shirley, B. C. Moon and C. Wolf, for appellee.

OPINION

REINHARD, C. J.

We are asked to reverse the judgment in this case on account of the alleged insufficiency of the complaint to which a demurrer was filed and overruled. The complaint is for a personal injury. It counts upon a violent and forcible expulsion of the appellee from appellant's freight train by the conductor. It is insisted that the complaint shows the appellee to have been a trespasser. Granting this to be so, it does not follow that the appellant's servant had a right to use the violence to which he resorted in order to eject the appellee. The theory of the complaint is that the appellee entered the car in the bona fide belief that it carried passengers. He had been informed by the station agent, it is alleged, that a freight train passing the station about the time of the arrival of this train would carry passengers to the station to which appellee desired to go. It is averred that the conductor violently assaulted the appellee and beat him, forcibly throwing him from the car while the same was going at the rate of ten miles an hour, and seriously injuring him. In such a complaint it is not necessary to allege negligence on the part of the carrier, and freedom from negligence on the part of the traveler. The wrong charged is in the nature of a willful injury, and if the appellee was guilty of negligence or was even guilty of being a trespasser, a willful or wanton injury would not be justifiable. If the appellee was not entitled to ride upon the train, the conductor should have requested him to alight. It was time enough to resort to force and violence when the same became necessary. While it is true that a carrier owes no special duty to a trespasser upon its train, "every member of the community owes to every other the duty of not wantonly exposing him to danger." Buswell Pers. Inj., section 71.

Nor is there any merit in the objection that the complaint fails to show that the conductor was acting within the scope of his authority or duty. It was the duty of the conductor to expel the appellee from the train if he was there in violation of the company's rules, and had he done so in a lawful manner, the appellant would have been protected. But because the conductor exceeded his authority in this respect, and accomplished that which it was his duty to do lawfully in an unlawful manner, the company will not be exonerated. Buswell Pers. Inj., section 33; Indianapolis Union R. W. Co. v. Cooper, 6 Ind.App. 202, 33 N.E. 219.

The next two errors assigned and discussed are considered together. They relate to the ruling of the court in overruling the appellant's motions for judgment on the verdict, and for a venire de...