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

• Decision Date: 13 February 1912
• Docket Number: No. 21,909.,21,909.
• Parties: LAKE ERIE & W. R. CO. v. HUFFMAN.
• Court: Indiana Supreme Court

177 Ind. 126

97 N.E. 434

LAKE ERIE & W. R. CO.

v.HUFFMAN.

No. 21,909.

Supreme Court of Indiana.

Feb. 13, 1912.

Appeal from Circuit Court, Marshall County; Harry Bernetha, Judge.

Action by Susan Huffman, administratrix, against the Lake Erie & Western Railroad Company. From a judgment for plaintiff, defendant appealed to the Appellate Court, and it transferred the cause to the Supreme Court under Burns' Ann. St. 1908, § 1405. Affirmed.W. H. H. Miller, C. C. Shirley, Samuel D. Miller, and John B. Cockrum, for appellant. Charles Kellison, McConnell, Jenkines, Jenkines & Stuart, and M. Winfield, for appellee.

COX, J.

The appellee's decedent, John W. Huffman, was a passenger on one of appellant's trains returning from Columbus, Ohio, to Peru, Ind. At Tipton appellant's two lines of railroad intersect each other; the one on which he came from Columbus continuing westward and the other from the south running north through Tipton to Peru. He should have changed cars at Tipton to reach his destination, but did not for the reason that he was not used to traveling on a railroad, and the conductor of the train from the east told him that he would not have to change and to stay on that car, which he did. Another conductor took charge of the train at Tipton, and it proceeded towards its westward destination. As the train was leaving that city, this conductor discovered that Huffman was on the wrong train, and should have changed, and so informed him. He offered to get off if the conductor would stop the train. The conductor gave the signal to stop, and Huffman started to the platform. When he reached there, while the speed of the train had been checked, it had not stopped, but, notwithstanding this, the conductor ordered him to get off, and he did so, and was severely injured. His injuries did not result in immediate death, and he brought an action for damages therefor in the Fulton circuit court. Upon the petition of appellant the case was removed to the United States Circuit Court, and while it was pending there Huffman died. Susan Huffman, his wife and administratrix, was there substituted, a trial was had which resulted in a disagreement of the jury, and the action was thereupon dismissed. The appellee then brought this action in the Fulton circuit court to recover damages for the death of Huffman, and joined with the appellant as a defendant George W. Dillon, the conductor who had ordered him off of the train. The action was subsequently dismissed as to Dillon. A change of venue was taken to the Marshall circuit court, and in a trial there a verdict for $1,999.99 was returned against appellant.

[1] It is first contended by counsel for appellant that error was committed by the trial court in overruling appellant's demurrer to the complaint. The complaint is long, and need not be set out. It shows that the decedent was appellant's passenger; that by the negligence of appellant's servants he was carried beyond the station where he should have left the train. It shows that, being unused to traveling, he was led to believe by the statement of one of appellant's conductors that he was on a car which would take him to his home without a change; that this mistake was discovered, and he was abruptly made acquainted with the fact that he was being carried another way and away from the place where he should have changed cars. It shows that the conductor of the train undertook to set decedent off of the train so that he might return to the station and signaled the train to stop for that purpose, but that before the train stopped, after it had decreased its speed, he ordered the deceased to get off at a place where there was no platform or landing; and that the deceased, not being able to judge the speed of trains and that it was dangerous to do so, relied on the judgment of the conductor, and jumped off and was hurt.

[2] To justify the sustaining of a demurrer, a complaint in such an action must either fail to show that there was negligence on the part of the defendant, or else must show that the passenger was guilty of contributory negligence.

[3] Appellant as a carrier of passengers was chargeable with the highest degree of care and liable for the slightest negligence in the exercise of such care. It has been held that it is negligence for an officer or agent of a railroad company to induce a passenger to leave a train which is in motion. Evansville, etc., R. Co. v. Athon, 6 Ind. App. 295, 33 N. E. 469, 51 Am. St. Rep. 303;Jones v. Chicago, etc., R. Co., 42 Minn. 183, 43 N. W. 1114;Filer v. N. Y., etc., R. Co., 49 N. Y. 47, 10 Am. Rep. 327;Filer v. N. Y., etc., R. Co., 59 N. Y. 351;Bucher v. N. Y. Central R. Co., 98 N. Y. 128;Eddy v. Wallace, 49 Fed. 801, 1 C. C. A. 435; Hutchinson on Carriers (3d Ed.) § 1221. It was, it appears from the allegations of the complaint, through the fault of one of appellant's conductors that Huffman remained on the train when he should have got off at the station. This being so, the least that could be done and fulfill the duty appellant owed him was to give him the opportunity to alight safely. Manifestly the duty was not discharged by compelling him to alight without bringing the train to a stop.

[4] It does not appear from the complaint that Huffman was guilty of contributory negligence. It is not negligence per se for a passenger to alight from a slowly moving train. Louisville, etc., R. Co. v. Crunk, 119 Ind. 542, 21 N. E. 31, 12 Am. St. Rep. 443;Pennsylvania R. Co. v. Marion, 123 Ind. 415, 23 N. E. 973, 7 L. R. A. 687, 18 Am. St. Rep. 330;Louisville, etc., R. Co. v. Bean, 9 Ind. App. 240, 36 N. E. 443;Harris v. Pittsburgh, etc., R. Co., 32 Ind. App. 600, 70 N. E. 407. And especially is this true when the passenger alights by the direction or order of one in authority on the train, as the passenger must ordinarily obey the reasonable commands and directions of those in charge of the train, and has the right to assume to some extent at least that he will not be ordered or directed into danger. The question of the passenger's contributory negligence is ordinarily a question of fact under the circumstances. Louisville, etc., R. Co. v. Kelly, 92 Ind. 371, 47 Am. Rep. 149;Cincinnati, etc., R. Co. v. Carper, 112 Ind. 27, 13 N. E. 122, 14 N. E. 352, 2 Am. St. Rep. 144;Louisville, etc., R. Co. v. Bisch, 120 Ind. 549, 22 N. E. 662;Louisville, etc., R. Co. v. Holsapple, 12 Ind. App. 301, 38 N. E. 1107;Pittsburgh, etc., R. Co. v. Gray, 28 Ind. App. 588, 64 N. E. 39; Thornton on Negligence, §§ 1815, 1824, 1825, 1924. See, also, the cases above cited. There was no error committed in overruling the demurrer to the complaint.

[5] While the action of John W. Huffman was pending, his deposition, touching the facts upon which it was brought, was taken, and subsequently used as a part of the plaintiff's evidence in the trial in the United States court. At the time of the accident Huffman was traveling alone, and an action for his injuries or death must succeed if at all on his testimony as to the facts connected with his injury as the testimony of no other witness was available. The trial court sustained the motion of Dillon, the conductor, to suppress the deposition as to him; he not having been a party to the action in which it was taken. A like motion of appellant was overruled, and the deposition admitted in evidence against it. This latter action of the court it is claimed was the commission of reversible error against appellant. It is argued that the right of appellee in avail herself in this case of the testimony of her deceased husband given in the former trial depends on section 456, Burns 1908, which reads as follows: “When an action has been dismissed, and another action has been commenced for the same cause, the depositions taken in the first action may be used in the second or any other action between the parties, or their assignees or representatives, for the same cause; but it must appear that the depositions have been duly filed in the court where the previous cause was pending and have remained on file from the time the action was dismissed until the time at which it was proposed to use them.” It is urged that the deposition could not be used as evidence in this action, for the reason that this is not an action for the “same cause,” and that, by reason of making Dillon a party to this action when he had not sustained that relation to the first action, it was not a “second or any other action between the same parties.” The principle upon which such evidence is admitted is that there has been given the opportunity and right of cross-examination. Dillon had not, and as to him the court suppressed and excluded the deposition. 1 Greenleaf on Evidence (15th Ed.) § 164. Moreover, the case was dismissed as to Dillon. But appellant had been a party to the other action, was given and availed itself of the opportunity to cross-examine, and its objection on account of a difference of parties is not well taken. Town of Walkerton v. Erdman, 23 Can. S. C. 352. That the two actions were for the “same cause” and between “the parties, or their assignees, or their representatives,” is not an open question in this state so far as the right to use in the subsequent case the testimony of a witness given on the first trial, where such witness has thereafter died, is concerned. Indianapolis, etc., R. Co. v. Stout, Adm'r, 53 Ind. 143. See, also, Erdman v. Town of Walkerton, 22 Ont. 693; Erdman v. Town of Walkerton, 20 Ont. App. 444; St. L. Ry. Co. v. Hengst, 36 Tex. Civ. App. 217, 81 S. W. 832; Town of Walkerton v. Erdman, supra, which is a case almostidentical in all respects with the one before us.

In the matter of the identity of cause and parties the section of our statute does no more than to restate the common-law rule which permits the use of former evidence in subsequent trials without in any way restricting it. This rule which is old and universally recognized as a rule of necessity to...