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

• Citation: 79 N.E. 1094,40 Ind.App. 240
• Decision Date: 31 January 1907
• Docket Number: No. 5,679.,5,679.
• Court: Indiana Appellate Court
• Parties: PITTSBURGH, C., C. & ST. L. RY. CO. v. ROSE.

40 Ind.App. 240

79 N.E. 1094

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

v.ROSE.

No. 5,679.¹

Appellate Court of Indiana.

Jan. 31, 1907.

Appeal from Circuit Court, Clark County; H. C. Montgomery, Judge.

Action by Peleg M. Rose against the Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company. From a judgment in favor of plaintiff, defendant appeals. Reversed, and new trial granted.

M. Z. Stannard, for appellant. Geo. H. Voigt, for appellee.

RABB, J.

The appellee sued appellant in the court below to recover damages for a personal injury alleged to have been caused by the negligent acts and omissions of the appellant. The complaint was in one paragraph, and appellant's demurrer, addressed to it for want of facts, was overruled by the court below, and proper exception reserved. Appellant answered the general denial. The cause was submitted to a jury for trial, and a general verdict returned in favor of the appellee, and answers to interrogatories submitted by the court to the jury returned by them with their verdict. Motion was made in the court below by the appellant for a judgment in its favor on the answers to the interrogatories. This motion was overruled by the court, and proper exception reserved. Appellant's motion for a new trial was overruled by the court, and proper exception reserved. Judgment was rendered on the verdict of the jury in appellee's favor. These rulings of the court below are assigned as error here, and will be considered in the order in which they are made.

The substantial averments of the complaint were that the appellant was a common carrier of passengers; that it operated a line of railroad connecting the cities of Jeffersonville and New Albany, in the state of Indiana, and the city of Louisville, in the state of Kentucky, and intermediate points; that appellee took passage in the appellant's passenger train at appellant's station in the city of Louisville, bound for the city of Jeffersonville; that to reach his destination it was necessary to change cars at a point called the “Junction,” on appellant's road, where one branch of the road deflected from the main line, to the city of Jeffersonville, the main line proceeding to the city of New Albany; that, in debarking from the said train, the appellee stepped upon a banana peel lying on the second step of the car from which he was debarking, and was thereby caused to slip and fall from said car, and was injured; that he was without fault or negligence contributing to his injury; that the banana peel rendered the said step dangerous to passengers using the same; that the banana peel had been permitted to remain on said step for more than an hour, and was there long before the appellant's train left its station at Louisville; that, by the exercise of ordinary care, the appellant could have known of the danger in permitting the banana peel to remain on the step of the car, and, by the exercise of reasonable diligence on its part, it could have discovered and removed the dangerous object before the accident and injury to the appellee. The averments in the complaint showing the length of time the banana peel remained upon the step of the car, and that it was there long before the train left the terminal station in Louisville, aided by the averment that the defendant might, by the exercise of ordinary care, have discovered the banana peel and its dangerous tendency to the traveling public, and to have removed it, we think, made the complaint sufficient to withstand the appellant's demurrer. There is a very marked distinction between the case at bar and the case of Malott, Rec'r, v. Sample, 164 Ind. 645, 74 N. E. 245, cited by appellant's counsel. In that case the complaint failed to state the length of time the defect in the stirrup, the giving way of which caused the accident, had existed before the happening of the accident, and there was no direct averment that the defect had existed a sufficient length of time that the defendant might, by the exercise of reasonable care, have repaired the stirrup. This fact appearing by way of recital, and because it appeared by way of recital, the Supreme Court held that the complaint was bad. In this complaint it appears from positive averment that the dangerous banana peel remained on the car step for some three-quarters of an hour before the train left the Louisville Station, and there is a distinct and positive averment that it so remained on the car step a sufficient length of time for the defendant, by the exercise of ordinary vigilance, to not only have discovered, but removed it. We think these allegations sufficiently distinguish the case at bar from the case cited, and that these distinguishing features cover the objection raised to the complaint in that case, and that the appellant's demurrer to the complaint was properly overruled by the court below.

The second error complained of by the appellant is the action of the court in overruling its motion for a judgment in its favor on the answers to interrogatories. The answers to interrogatories, 67 in number, show that the plaintiff took passage at Louisville for a point on defendant's road that required him to change cars at a place called the “Junction,” which was between 5 and 10 minutes', ride from Louisville; that the car in which plaintiff was riding had been placed on defendant's sidetrack No. 4 shortly before 5 p. m. on the day in which plaintiff was hurt, so as to be ready for the 5 p. m. run from Louisville to New Albany; that before it was so placed on said sidetrack it was cleaned and inspected by the servants of the company; that there was at that time no banana peel on the steps; that the car was used in making the 5 o'clock run to New Albany from Louisville, and in making the 5:30 run from New Albany to Louisville, and in the 6 o'clock run from Louisville to New Albany; that two passengers on the same train with plaintiff first saw the banana peel lying on the car step two minutes before the train started out from Louisville for the 6 p. m. run; that the banana peel was not placed on the car steps by any servant of the company, and that none of the company's servants knew of its presence there; that there were about 300 passengers on the train at the time, and that the train was composed of five or six coaches; that it took the trains from 20 to 25 minutes to make each run between Louisville and New Albany; that when the train arrived at Louisville from the 5:30 run from New Albany, it remained at Louisville about five minutes before starting on the return trip to New Albany; that, while the train stood at Louisville, after making the 5:30 run from New Albany, the brakeman had to announce the stations on certain cars, make couplings, adjust air brakes, throw switches, and assist passengers to alight from, and board, the train; that the conductor had to announce stations in certain cars, and assist passengers to alight from, and board, the trains, and give signals; that the plaintiff alighted from the defendant's car at the Junction, and, in alighting, stepped on a banana peel lying on the second step of the car in which he was riding, and at the time the banana peel had been on the car step for an unknown length of time. The interrogatories find that the car in which the plaintiff rode was cleaned after it was taken out of the morning run and before it was put on the afternoon run; that there was a morning run is to be known only by inference. There is no express finding that there was a morning run or an evening run of cars on this road, and no finding when the morning run ceased; for anything appearing in the answers to interrogatories the morning run may have ceased the first hour after midnight, and the cars may have been then cleaned. There is a finding that, before the car was placed on defendant's sidetrack No. 4 (and where sidetrack No. 4 is located is not disclosed by the answers to interrogatories), it was inspected by the defendant's car inspector, and that there was no banana peel on the car steps at the time it was so inspected, but what length of time elapsed between the inspection and the placing of the car on the sidetrack is nowhere disclosed by the answers to interrogatories. Whether it was immediately before, or the day before, or the week, or the month, or year, is left in doubt and uncertainty. For anything appearing in the answers to the interrogatories the banana peel may have been on the car steps a week before the accident. It is true, there is a finding that, some time in the morning of the day on which the accident happened, the time not definitely given, the car and steps were cleaned by the servants of the company, but it is not stated whether they did or did not see and remove the banana peel. It is found that, when the inspection was made, the banana peel was not present on the steps, but, as before shown, the time of the inspection is utterly indefinite, except that it was before putting the car on track No. 4 at 5 p. m. of February 9th. To entitle the defendant to a judgment in its favor on the answers to interrogatories against the verdict of the jury, there must be an irreconcilable conflict between the answers to the interrogatories and the general verdict. The answers to the interrogatories can be in no wise aided by a reference to the evidence. They must affirmatively show the defendant entitled to a judgment. All reasonable presumptions are indulged in favor of the general verdict. Wright v. Chicago, etc., Ry. Co., 160 Ind. 589, 66 N. E. 454, and cases there cited. And numerous other cases could be cited to the same effect. This is a general principle well recognized, and will not be questioned. In this case it will be presumed in support of the general verdict that the inspection of defendant's car found to have been made by the jury was so made an unreasonable length of time before the car was put in service, and that, had such inspection been made a reasonable length...