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

• Decision Date: 05 June 1908
• Docket Number: No. 21,230.,21,230.
• Citation: 171 Ind. 71,84 N.E. 988
• Court: Indiana Supreme Court
• Parties: PITTSBURGH, C., C. & ST. L. RY. CO. v. SCHEPMAN.

171 Ind. 71

84 N.E. 988

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

v.SCHEPMAN.

No. 21,230.

Supreme Court of Indiana.

June 5, 1908.

Appeal from Circuit Court, Henry County; J. M. Morris, Judge.

Action by George W. Schepman against the Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company. Judgment for plaintiff, and defendant appealed to the Appellate Court (82 N. E. 998), whence the cause was appealed to the Supreme Court under Burns' Ann. St. 1908, § 1394, cl. 3. Reversed, with instructions.

John L. Rupe, for appellant. Shiveley & Shiveley, for appellee.

HADLEY, J.

Appellee sued the appellant for the loss of a leg alleged to have been caused by the negligence of the appellant. The complaint is in two paragraphs. It is charged in the first paragraph that appellant owns and operates a railroad running from Indianapolis through Richmond; that on February 27, 1904, appellant operated between said points a passenger train scheduled to leave Indianapolis at 50 minutes after 6 o'clock in the evening of each day, and held out to the public that said train was a complete vestibuled train. At the time scheduled on said day the defendant started a train of cars from Indianapolis to Richmond, made up in the following order: An engine, a number of baggage cars, a day coach, a baggage car and smoker combined, a number of Pullman sleepers, and a dining car. The forward half of the baggage car was used for baggage, and this end of the car was attached to the rear end of the day coach occupied by the plaintiff, the platform of which car, where coupled to said day coach, was 18 inches wide in the center and 6 inches at the sides, and had no guard rails, vestibule, or other protection to prevent passengers passing from said day coach into said combination car from being thrown therefrom, and the same was not lighted. All the other ends, platforms, and spaces between the other cars composing the train were vestibuled and inclosed, thereby enabling passengers to walk from one car to another without any danger of being thrown from the platform of said cars. Defendant, being in Indianapolis, and desiring to return to his home in Richmond, purchased a ticket, and became a passenger on the train. He entered the day coach, and soon thereafter became sick, and by reason of said sickness it became necessary for him to use a water closet. He thereupon walked to the water closet in the rear part of said day coach, and attempted to enter the same, but the door was locked, and he was unable to do so, and, believing that the spaces between all the cars of the train were vestibuled, guarded, and inclosed, he thereupon attempted to pass from said car in which he was riding to the car immediately in the rear thereof in search of a water closet, and when he stepped on the platform of the car immediately in the rear of the passenger coach he was then and there violently hurled and thrown from said platform to the ground by the lurching of the train and injured. When thrown from the train it was running at the rate of 50 miles an hour, over an uneven track, and by reason of its speed and the rough condition of the track the train was rocking and lurching from side to side. The negligence charged is: “That said defendant carelessly, negligently, and wrongfully made up such train by placing said combination car between said passenger coach in which the plaintiff was riding and the Pullman sleepers.” It is also alleged that when he attempted to pass into the combination car he had no knowledge of the character and construction of the platform, nor that the same was not vestibuled, guarded, or lighted. “And by reason of the lack of guard rails or vestibuling devices about the platform leading into said combination car from which he was thrown, the lack of lights to enable him to see said negligent, careless, and wrongful arrangement of cars in said train, and the dangerous and high rate of speed at which the train was being operated, the plaintiff was thrown from said train and injured as hereinafter described.” The second paragraph of the complaint is not different from the first in any material respect. A demurrer to each paragraph of the complaint was overruled. The defendant answered the general denial and one affirmative paragraph. Trial by jury, verdict and judgment for the plaintiff over a motion for a new trial.

We are called upon to decide whether the facts stated in the complaint constitute a cause of action. In common-law actions founded on negligence the rule is firmly established that the negligence relied on, whether of commission or omission, must be averred in direct and positive terms, or such a state of facts set forth as will, in the usual course of things, to a certainty impel the presumption that the injury sued for was the result of the defendant's negligence. Kentucky Bridge Co. v. Moran, 169 Ind. 18, 80 N. E. 536;Laporte Carriage Co. v. Sullender, 165 Ind. 294, 299, 75 N. E. 277;Penn. Co. v. Marion, 104 Ind. 240, 3 N. E. 874;Railway Co. v. Anderson, 58 Ind. 413. Applying the rule above stated to the complaint,...