Menaugh v. Bedford Belt Railway Company
| Decision Date | 28 May 1901 |
| Docket Number | 19,259 |
| Citation | 60 N.E. 694,157 Ind. 20 |
| Parties | Menaugh, Administratrix, v. Bedford Belt Railway Company, et al |
| Court | Indiana Supreme Court |
From Lawrence Circuit Court; W. H. Martin, Judge.
Action by Lizzie R. Menaugh as administratrix against the Bedford Belt Railway Company and another for damages on account of the death of her husband. From a judgment for defendants plaintiff appeals.
Affirmed.
J. R East, R. H. East and McHenry Owen, for appellant.
T. J Brooks, W. F. Brooks and F. M. Trissal, for appellees.
April 18, 1899, appellee, the Southern Indiana Railroad Company, operated the Bedford Belt Railway, a short line of railroad running from the city of Bedford into the stone quarrying district. At the date given, appellant's decedent, who was her husband, boarded an empty passenger coach standing on the main track in front of a locomotive at the station called Oolitic, the locomotive having behind it about twelve cars, chiefly flats, loaded with stone. Decedent entered the coach without direction or invitation from any employe of the company, the conductor at the time being up the road superintending the making up of the train. One other man entered the same coach. It was an irregular train that was run when and as often as was required to haul out the loaded stone cars to the main railroad lines, generally running daily, but sometimes but twice a week. When the train started for Bedford, the conductor got upon the same coach, it being pushed by the engine. He expressed neither assent nor dissent to the two occupants riding upon the train. He neither requested nor received fare from either of them. Upon arriving at Salt Creek yards about three-fourths of a mile distant from Oolitic the conductor said to the two men: The two men went to and boarded the car behind the engine, which was loaded with stone. The conductor went to the rear of the train. After siding the coach, the train proceeded, and, being annoyed by sparks and cinders from the locomotive, decedent suggested to his companion that he was an experienced "railroader" and that the tool-box attached to the rear of the tender was a good place to avoid the cinders, and the two thereupon, of their own motion, and without the knowledge or consent of the conductor, left the car to which they had been directed, and proceeded to the tool-box, slightly elevated the lid by placing iron links under it, and then sat upon it, with their backs to the tender. While in this position the locomotive and tender left the track, rolled down an embankment, and appellant's decedent received injuries whereof he died.
This suit was brought by the administratrix for the use of herself as widow, and their children, alleging a negligent causing of the death of her intestate. Demand $ 10,000. Appellant having produced evidence tending to prove the above facts, upon appellee's motion the court directed the jury to return a verdict for the defendants. This action of the court presents the principal question for decision.
This case is of a class that is purely statutory, and cannot be maintained without showing that the deceased might have maintained the action, had he lived, for the injuries resulting from the same act or omission. § 285 Burns 1894, as amended, Acts 1899, p. 405; Kauffman v. Cleveland, etc., R. Co., 144 Ind. 456, 43 N.E. 446, and cases cited.
If the deceased had lived and brought this action it would have been necessary for him to show that the appellees had accepted him as a passenger, and owed him the duty of safe carriage. In the absence of anything to the contrary, we probably must presume that the appellees were operating a commercial railroad, and that in consideration of the rights and franchises granted them by the State they had imposed upon them the duty of a common carrier of passengers. But this implied duty cannot be extended so far as to require the appellees to carry passengers on all trains. Within reasonable limits they had the right to restrict passengers to certain trains prepared for their accommodation, and might properly exclude them from trains designed exclusively for the transportation of freight. Smith v. Louisville, etc., R. Co., 124 Ind. 394, 24 N.E. 753; Indianapolis, etc., R. Co. v. Kennedy, 77 Ind. 507, 510; Elliott on Railroads, § 1392, 1573.
While a railroad company may agree to carry passengers upon its freight train, and when it does so agree, and accepts a passenger on such train, it is bound to the same degree of care for the safety of such passenger as when upon a train designed for passengers, modified only by the differing manner consistent with the usual and practical operation of such train, yet in the absence of an established custom, or some sort of notice that amounts to an invitation when a person gets aboard a train composed of cars obviously designed for and loaded with stone and other goods, in the...
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