Pittsburgh, Cincinnati, Chicago And St. Louis Railway Co. v. Gray

• Decision Date: 04 April 1902
• Docket Number: 3,234
• Parties: PITTSBURGH, CINCINNATI, CHICAGO AND ST. LOUIS RAILWAY COMPANY v. GRAY
• Court: Indiana Appellate Court

64 N.E. 39

28 Ind.App. 588

PITTSBURGH, CINCINNATI, CHICAGO AND ST. LOUIS RAILWAY COMPANY v. GRAY

No. 3,234

Court of Appeals of Indiana

April 4, 1902

From Cass Circuit Court; D. H. Chase, Judge.

Action by Samuel Gray against the Pittsburgh, Cincinnati, Chicago and St. Louis Railway Company for damages. From a judgment for plaintiff, defendant appeals.

Reversed.

G. E Ross and J. L. Rupe, for appellant.

J. C Nelson, Q. A. Myers, J. P. Gray, J. C. Blacklidge, C. C Shirley and C. Wolf, for appellee.

WILEY, J., Comstock, C. J., Black, Henley, and Roby, J. J. concur., Robinson, J., dissents.

OPINION

WILEY, J.

Appellee was injured while alighting from one of appellant's passenger trains, and prosecuted an action against it for damages. His complaint was in three paragraphs. The first paragraph avers that appellee took passage on one of appellant's trains at Logansport, to go to Galveston, and paid the regular fare to said last named station; that when the train stopped at Galveston he arose from his seat and passed out of the car, where he was riding, onto the platform for the purpose of getting off; that when he was about to descend the car steps, appellant's agent in charge of the train negligently caused the same to start suddenly, and that one of the brakemen in charge negligently ordered and directed the plaintiff to leave the train while in motion, and took hold of his arm, led him across the platform and down the steps, and encouraged, advised, directed, and commanded him to get off; that appellee was about seventy years old; that he was somewhat confused by the sudden starting of the train and the conduct of the brakeman, as described; that he relied upon the brakeman's directions and stepped from the train while it was in motion. It is also charged that one of the duties of the brakeman was to look after the safe debarkation of passengers; that appellee knew that the train was moving slightly, but that on account of his age, his imperfect eyesight, and his confusion caused by the sudden starting of the train, and the brakeman's conduct, and being unfamiliar with the movement of trains, and unable to estimate the speed, he believed that the motion of the train was not so great as to make his debarkation dangerous; that the train stopped a very brief time, wholly insufficient in view of appellee's age, to enable him to alight safely; that the brakeman saw him in the act of leaving the train when the same was put in motion and might have stopped it by pulling the bell-cord, before it had acquired any considerable motion, but that he negligently failed and refused to do so, or in any manner signal the engineer to hold the train until appellee could alight; that when he had descended the steps and was in the act of stepping from the same in obedience to the brakeman's order, and when he advanced too far to retreat, the speed was suddenly very much accelerated, whereby in alighting, and while in the exercise of due care, he was thrown upon the platform and seriously injured. The complaint further avers that said injury was caused without any fault or negligence on his part, but wholly on account of the negligence and fault of appellant. The second and fourth paragraphs of complaint contain all the material averments of the first, differing therefrom only that they do not charge that the train did not stop a sufficient length of time for appellee to debark.

Demurrers to each of these paragraphs of complaint were overruled. The cause was put at issue by an answer in denial, trial by jury, resulting in a general verdict for appellee. With the general verdict the jury found specially by way of answers to interrogatories. Appellant moved for a new trial, for judgment on the answers to interrogatories, and in arrest of judgment. By the assignment of errors, all the rulings of the trial court, to which reference is made, are brought in review.

As against the sufficiency of the complaint it is urged that the facts pleaded do not show that the brakeman was, at the time, acting within the line of his duty and scope of his employment. We do not think this position can be successfully maintained. Summarized, the acts of negligence charged against appellant are that the brakeman advised, commanded, directed, ordered, and assisted appellee to alight while the train was in motion, and at a time when he must have known it was dangerous, and suddenly starting and increasing the speed of the train when appellee was in the act of debarking. In addition to this, in the first paragraph, the further act of negligence is charged that the train did not stop a sufficient length of time for appellee, on account of his age, to alight. It is charged that one of the duties of the brakeman was to assist passengers in safely alighting from the train. This is an averment of an issuable fact, and it necessarily follows, as a matter of pleading, that when the brakeman was directing, assisting, commanding, and advising appellee to alight, he was acting within the line of his duty and scope of his employment. This conclusion is in harmony with the rule declared in Wabash R. Co. v. Savage, 110 Ind. 156, 9 N.E. 85.

It is also urged that, at the time appellee attempted to alight from the train, the relation of carrier and passenger did not exist between him and appellant, and hence, appellant did not owe to him the duty of a carrier to a passenger. This position is not tenable. Up to the time appellee reached the station where he desired to debark, he certainly was a passenger. He rightfully entered the train, paid his fare, and had done nothing to sever the relation of carrier and passenger. So far as the complaint shows he had made every reasonable effort to alight before the train started. If he had not left his seat in the car, and the train had proceeded on its way, he would still have been a passenger, and by paying his fare to the next station or any station, appellant would have been required to carry him safely. Ordinarily where a person becomes a passenger on a train, pays his fare, and conducts himself in an orderly and proper manner, he remains a passenger until he safely debarks therefrom. In this case, as shown by the complaint, appellant recognized appellee as a passenger, for its servant as shown by the complaint advised, directed, assisted, and commanded him to alight. The relation of carrier and passenger exists, where the passenger, carelessly or inadvertently takes the wrong train, or where a person enters a car to assist a member of his family or some one in his charge. Evansville, etc., R. Co. v. Athon, 6 Ind.App. 295, 51 Am. St. 303, 33 N.E. 469; New York, etc., R. Co. v. Mushrush, 11 Ind.App. 192, 37 N.E. 954; Cincinnati, etc., R. Co. v. Carper, 112 Ind. 26, 2, 13 N.E. 122 Am. St. 144; Louisville, etc., R. Co. v. Crunk, 119 Ind. 542, 12 Am. St. 443, 21 N.E. 31.

In Louisville, etc., R. Co. v. Costello, 9 Ind.App. 462, 36 N.E. 299, the train stopped three minutes and other passengers got on and off. Costello was a passenger, and the train had stopped a sufficient length of time to enable him to alight, and while he was alighting the train was started and he was injured. It was held that he could not recover, for it was shown that he had sufficient time to alight, and that the company's servant did not know he was attempting to alight when they started the train.

In the case we are now considering, the complaint does not show how long the train stopped at Galveston, but it does show that as soon as it did stop appellee started to alight. Under these facts, he was still a passenger, and appellant owed to him the duties of a passenger.

It is further urged that the complaint is bad because it shows that appellee was guilty of negligence in attempting to alight from the train when it was in motion. It does not necessarily follow because a passenger attempts to alight from a slowly moving train that he is guilty of contributory negligence, for such act is not negligence per se. This rule is declared in many cases. Louisville, etc., R. Co. v. Crunk, supra; Cincinnati, etc., R. Co. v. Carper, supra; Pennsylvania Co. v. Marion, 123 Ind. 415, 7 L. R. A. 687, 18 Am. St. 330, 23 N.E. 973; Louisville, etc., R. Co. v. Bean, 9 Ind.App. 240, 36 N.E. 443. The demurrers to the several paragraphs of complaint were properly overruled.

We proceed next to consider the overruling of appellant's motion for judgment on the answers to interrogatories non obstante veredicto. A correct determination of the question thus raised depends upon the facts specially found. The facts upon which the ruling must be measured are as follows: Appellee was sixty-seven years old; the day he was injured was clear and pleasant; he was in full possession of his sight and hearing; he lived at Galveston and was acquainted with the trains passing there, and was a frequent traveler thereon; when the train reached Galveston, it stopped to let passengers off and on, and appellee knew that it had so stopped; the train stopped long enough to allow all passengers desiring to do so to get on and off; the train stopped as long as usual; several passengers got on and off the train before it started, without difficulty; the train was started upon a signal from the conductor after all baggage and express matter had been disposed of, and after all passengers, apparently to the conductor and brakeman, had gotten off; when the conductor started the train he did not know that appellee had not alighted therefrom; when the train stopped, appellee arose from his seat and walked to the rear door of the smoking car, where he met a Mr. Tyner, a passenger who came on board at Galveston, and talked with him till the train started, and about the time he came to the door he met the...