Pennsylvania Company v. Marion

• Decision Date: 21 March 1890
• Docket Number: 14,109
• Citation: 23 N.E. 973,123 Ind. 415
• Parties: The Pennsylvania Company v. Marion
• Court: Indiana Supreme Court

23 N.E. 973

123 Ind. 415

The Pennsylvania Company v. Marion

No. 14,109

Supreme Court of Indiana

March 21, 1890

Petition for a Rehearing Overruled June 4, 1890.

From the Owen Circuit Court.

Judgment affirmed, at costs of appellant.

S. O Pickens, for appellant.

J. C Robinson and I. H. Fowler, for appellee.

OPINION

Olds, J.

This was an action brought by the appellee against the appellant to recover damages sustained by the appellee alleged to have resulted by reason of the negligence of the appellant.

On the 6th day of December, 1882, the appellee was a passenger in the caboose of one of appellant's freight trains from Gosport to Mundy's Station. When the train arrived at the latter station, the place of appellee's destination, and while the train was slowing up to make the stop, and running at a very low rate of speed, the appellee stepped off the car on to the platform, the train not coming to a stop until after the caboose passed the platform. In stepping on to the platform the appellee fell, with his right arm under the car, and it was so badly crushed by the car wheels passing over it that it had to be amputated.

The appellant is charged with negligence in constructing and maintaining the platform in an unsafe and dangerous condition, wholly unfit and unsafe for use of passengers.

The appellant demurred to the complaint for want of facts, which demurrer was overruled, and exceptions taken.

Issue was joined by answer in denial, and a trial had, resulting in a verdict and judgment in favor of the appellee for $ 3,000.

Appellant filed a motion for a new trial, which was overruled, and exceptions taken.

The rulings of the court on the demurrer to the complaint and motion for a new trial are assigned as error.

There was a former trial of the cause and an appeal to this court, and a reversal of the judgment. Pennsylvania Co. v. Marion, 104 Ind. 239, 3 N.E. 874.

It is conceded by counsel for appellant that the complaint is sufficient, and the alleged error in overruling the demurrer to the complaint is waived. The only error relied upon for the reversal of the judgment is the ruling of the court on the motion for a new trial. The principal ground urged against such ruling is that the verdict is not sustained by sufficient evidence. This contention of the appellant is mainly on account of the fact that the evidence shows that the appellee stepped from the train while it was in motion, and this, it is contended, is negligence per se, and therefore it must be declared as a matter of law that the appellee was guilty of contributory negligence, and hence can not recover.

It is important to consider what obligation rests upon the appellant in regard to the keeping of the platform at the station in repair, and this has been so fully considered in the recent decisions of this court that it is unnecessary to do more than refer to the decisions and quote briefly from them.

In Louisville, etc., R. W. Co. v. Lucas, 119 Ind. 583, at p. 590, 21 N.E. 968, it is said: "The duty of a railway carrier does not end when it provides safe cars, engines and appliances, for its duty extends so far as to require it to provide means for passengers to safely enter its cars at its stations, and that duty also requires the carrier to make it safe for them to leave its cars and stations." It is further said: "It was the duty of the appellant to keep the platform which it used in conjunction with the Pennsylvania Company in a safe condition. The situation of the platform, and the manner of its construction, were such as to make it the duty of the appellant to see that it was safe, for it was bound to know that if it became unsafe the lives and limbs of its passengers were put in peril."

In the case of Lucas v. Pennsylvania Co., 120 Ind. 205, 21 N.E. 972, the following language from Bishop Non-Contract Law, section 1086, is quoted and approved: "The depot and connected grounds, visited by coming and going passengers, should be fitted up with a careful regard to their comfort and safety. The approaches, the tracks around, the platforms and places for entering and leaving the cars, the passages to the cars; every spot likely to be visited by passengers seeking the depot, waiting at it for trains, or departing; should be made safe and kept so, and at reasonable times should be lighted. And passengers not in fault, injured through a neglect of this duty, may have compensation."

These decisions settle the law in this State in accordance with the holding of other courts, that railway companies are bound to keep the platforms at their passenger stations in a safe condition for persons to enter and leave the cars, and a failure to do so is a neglect of duty which makes the company liable to persons injured without fault on their part on account of such defective platform.

The evidence clearly shows the platform, where the appellee stepped from the car, to be out of repair and unfit and unsafe for use by passengers in getting on and off trains, and this is not seriously controverted, except to contend that it might have been worse.

We next consider the question of contributory negligence by the appellee in stepping from the train while in motion.

There was evidence from which the jury may have found that at the time the appellee stepped from the train the train was moving at a speed of not over two miles an hour, or at the speed of an ordinary or slow walk of a person, and that it came to a stop about two car lengths beyond the platform; that it was moving at that slow rate of speed and was continuing to move past the platform, and the appellee came out upon the platform of the car and stepped on to the lower step and from there on to the platform at the station in a careful manner, and as he stepped on to the platform his feet slipped, or he stumbled and fell, by reason of the condition of the platform; that the platform was uneven, some boards being higher than others, the boards warped and the platform sunken in the center so that it was on a decline from the outer edge next to the track toward the center, but the point where the appellee alighted was more defective than some other parts of it. There was also evidence from which the jury may have properly found that appellee was unacquainted with the condition of the platform, and that the appellee was a man in full vigor and strength, and the place of alighting was on the platform of a public railway station, used to enter and depart from the cars run on appellant's railroad. Under this state of the evidence the question as to whether or not the appellee was guilty of contributory negligence was a fact to be left to the jury to determine.

The question as to whether or not a person who voluntarily alights from a moving train is guilty of negligence or not, was considered in the case of Louisville, etc., R. R. Co. v. Crunk, 119 Ind. 542, 21 N.E. 31, and in that case it was held that whether alighting from a moving train constitutes negligence or not is a fact to be determined by the jury trying the cause, taking into consideration all the circumstances in connection with the alighting, and this, we think, is well supported by authorities which are considered and cited in that case. There was evidence to support the verdict.

Some other causes for a new trial are stated in the motion, and while they are not waived, as we understand counsel in their brief, they are not confidently relied upon for a reversal. The first in order is, appellee was asked by his counsel the following question: "In stepping off the train what effort, if any, did you...