Pittsburgh, C., C. & St. L. Ry. Co. v. Higgs

• Decision Date: 05 December 1905
• Docket Number: No. 20,594.,20,594.
• Citation: 76 N.E. 299,165 Ind. 694
• Court: Indiana Supreme Court
• Parties: PITTSBURGH, C., C. & ST. L. RY. CO. v. HIGGS.

165 Ind. 694

76 N.E. 299

PITTSBURGH, C., C. & ST. L. RY. CO.

v.HIGGS.

No. 20,594.^*

Supreme Court of Indiana.

Dec. 5, 1905.

Appeal from Circuit Court, Cass County; George A. Gamble, Special Judge.

Action by George W. Higgs against the Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company. From a judgment for plaintiff, defendant appeals. Transferred from Appellate Court, under section 1337u, Burns' Ann. St. 1901. Affirmed.G. E. Ross, for appellant. Nelson, Myers & Yarlott, for appellee.

JORDAN, J.

On July 13, 1903, appellee filed a complaint in the Cass circuit court, whereby he charged that appellant railroad company was, at the time therein mentioned, a corporation owning and operating a railroad known as the “Panhandle,” extending from the city of Chicago, Ill., through the state of Indiana, to the city of Cincinnati, Ohio, and that said railroad company was a common carrier of passengers for hire. The complaint further averred that on April 22, 1903, said defendant railroad company, in consideration of the sum of $10, received the plaintiff, appellee herein, as a passenger over its said railroad from Chicago, Ill., to Cincinnati, Ohio, and while on its cars, on his journey, at or near the village of Kouts, in the state of Indiana, by and through the negligence of the said defendant and its servants in running and managing its railroad and trains of cars thereon, the train on which plaintiff was riding collided with another train, which was being run and operated by the defendant. Plaintiff was then and there and thereby, and because of such collision, suddenly and forcibly thrown out of his seat, whereby one of his ribs was broken, his head was bruised, spinal column strained and injured, all because of said collision. That he was rendered senseless for some time, and his injuries were of such a nature and character that it became necessary for him to have the immediate attention of a physician, and that ever since he has suffered great pain and mental anguish. Other facts are alleged, disclosing his age, occupation, good health, and condition at the time of the accident, and his inability thereafter to perform any work, etc. The complaint closes with the demand for $15,000 damages. A demurrer thereto for want of facts was overruled, and thereupon appellant filed an answer in three paragraphs: First. A general denial. Second. Alleging that on April 20, 1903, the plaintiff and the Northern Pacific Railway Company entered into a special contract at Spokane, state of Washington, by which the plaintiff was entitled to ride as a second-class passenger over the lines of said Northern Pacific Railway Company from said city of Spokane to Chicago, Ill., and from Chicago, Ill., to Cincinnati, Ohio, over the lines of the defendant, the Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company. Other lines of railway over which plaintiff was entitled to ride on said ticket to Nicholasville, Ky., are stated. It is then averred that “the plaintiff agreed and undertook to assume all risks of accident and damage to his person or property while so traveling or being carried over said lines of railway; that said agreement was in the form of a ticket, and delivered to plaintiff by the said Northern Pacific Railway Company, and was the only evidence of his right to ride or be carried over said lines; that, in pursuance of the said agreement as expressed in the ticket, the plaintiff started from said Spokane, and was so traveling on said ticket, and not otherwise, at the time he is alleged to have been injured, as charged in the complaint.” etc.-wherefore defendant says the plaintiff ought not to recover in this action. The third paragraph is substantially the same as the second, and thereon and thereby appellant alleged and set up as a defense to the action that “by the terms of said contract the plaintiff agreed and undertook to assume all risks of accident and damage to his person or property while so traveling or being carried over said several lines of railroad.” No copy of the contract or agreement referred to is filed with or made a part of either of the paragraphs of answer.

A demurrer by appellee for want of facts was sustained to the second and third paragraphs. The cause, being at issue upon the complaint and answer of general denial, was tried by a jury, and a general verdict, finding in favor of appellee, and awarding him damages in the sum of $300, was returned by the jury. Along with this general verdict, the jury returned answers to a number of interrogatories. By their answers to the latter the jury found, among other things, substantially as follows: That the plaintiff got upon one of the defendant's passenger trains at the city of Chicago, Ill., about midnight on April 22, 1903, his final destination being Nicholasville, Ky. Before he boarded said train, he had purchased a ticket which entitled him to ride over the defendant's railroad. This ticket was purchased by the plaintiff at Spokane, in the state of Washington, of the Northern Pacific Railway Company, and was a special limited second-class contract ticket. Interrogatory No. 11, with the answer of the jury thereto, is as follows: “Interrogatory No. 11. Was the plaintiff, George W. Higgs, received by the defendant at Chicago, and being carried over its railroad from Chicago, Illinois, to Cincinnati, Ohio, April 23, 1903, under a special contract in writing, signed by him and entered into with the Northern Pacific Railway Company at Spokane, Washington? Answer. Yes. Meredith Tyner, Foreman.” Over appellant's motion for a new trial and for judgment on the special findings of the jury, the court rendered judgment on the general verdict.

Appellant appeals, and assigns and argues for reversal certain alleged errors of the trial court.

The following facts appear to be clearly established by the evidence: Appellant is a corporation, owning and operating a railroad extending from Chicago, Ill., through the state of Indiana, to Cincinnati, Ohio, and is a common carrier of freight and passengers for hire. On April 20, 1903, appellee purchased of the agent of the Northern Pacific Railway Company at the city of Spokane, state of Washington, a coupon second-class ticket, which entitled him to be carried as a passenger from said city of Spokane to Nicholasville, Ky.; the latter being the home town of appellee. One of the coupons of this through ticket entitled him to be carried as a passenger over appellant's railroad from Chicago, Ill., to Cincinnati, Ohio. The price which he paid for this through ticket was $53. The evidence does not expressly disclose the precise amount of money which appellant was entitled to receive from the railroad company selling the ticket for the distance which it carried appellee over its line of railway, but it is shown that it would be entitled to receive a proportionate part of the price for the ticket; the exact amount being a matter of calculation on the arrangement which it had with the railroad company which sold the ticket. Appellee appears to have started on his journey from Spokane on Sunday night, and arrived at Chicago the following Wednesday, being April 22, 1903. On the latter day, about midnight, he boarded one of appellant's passenger trains at the said city of Chicago, intending to become a passenger thereon from said city to the city of Cincinnati, Ohio. He went into the ladies' car, and took a seat about the center of that coach. He appears to have utilized two seats, one of which was turned over; that, as he was tired and sleepy from the effects of his long journey, he used these two seats for the purpose of lying down thereon, and soon after reclining upon his seat he fell asleep. After the train had left Chicago, the conductor in charge thereof came through the passenger car where plaintiff was, examined his ticket, and thereupon punched the coupon which entitled him to be carried from Chicago to Cincinnati. After sleeping for some time, appellee was awakened by a severe and sudden jolt, which gave forth a “dead sound.” All he appears to have remembered on being awakened was that there was much confusion in the car, some of the ladies were screaming, and he, in the excitement and confusion at the time, made a dash for the door of the car, and was there informed by some one that the train on which he was riding and a freight train on appellant's road had collided with each other at a point near Kouts, Ind. He returned to his seat, laid down thereon, felt sick, became very pale, great beads of sweat stood upon his face, and he complained of being injured, and evidence of the fact that he was severely injured and was suffering was apparent to some of his fellow passengers. The conductor, on learning of appellee's injury, telegraphed to Logansport to the company's physician to attend upon appellee and give him medical attention when the train arrived at the city. This appears to have been done. The physician gave appellee some medicine and put plasters on his back to alleviate his suffering. Medicine also appears to have been administered to him between Logansport and Cincinnati. At the latter city, being unable to help himself, he was assisted from the train, and conveyed to a station, where he was placed on a train to carry him to Nicholasville, Ky. After reaching home, physicians were called to examine him, and they discovered that one of his ribs was broken or fractured, and that he was injured in other parts of his body. He continued to be disabled for quite a length of time, and was under medical treatment.

That the injuries which appellee received were the result of the collision in question, and that said accident was the proximate cause thereof, is fully sustained by the evidence. It is shown that the train upon which appellee was being carried collided with a freight train which appellant owned and was operating upon its railroad, and which at the time was in charge of its agents...