Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company v. Richardson
| Citation | 82 N.E. 536,40 Ind.App. 503 |
| Decision Date | 19 November 1907 |
| Docket Number | 6,103 |
| Court | Court of Appeals of Indiana |
| Parties | PITTSBURGH, CINCINNATI, CHICAGO & ST. LOUIS RAILWAY COMPANY v. RICHARDSON, BY NEXT FRIEND |
From Floyd Circuit Court; William C. Utz, Judge.
Action by Robert Richardson, by his next friend, against the Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company. From a judgment for plaintiff, defendant appeals.
Affirmed.
M. Z Stannard and McIntyre, Bulleit & James, for appellant.
Stotsenburg & Weathers, for appellee.
Action by appellee for personal injuries sustained while a passenger on appellant's train, at the hands of a fellow passenger because of the negligence of appellant's brakeman. Issues were formed upon the pleadings, and a trial had resulting in a verdict on which judgment for $ 250 was rendered in favor of appellee.
Only the actions of the court in overruling appellant's demurrer to the complaint for want of facts and its motion for a new trial are discussed.
The complaint alleges that the plaintiff was a minor; that defendant was a corporation operating a line of railroad extending from the city of Louisville, Kentucky, to the city of New Albany, Indiana; that said defendant daily ran a large number of passenger-trains over its said road, carrying large numbers of passengers between said points; that on March 12 1905, the plaintiff, Thomas Alexander and George Fredice, about 11:30 o'clock p. m., boarded the same coach on one of defendant's passenger-trains at Louisville bound for New Albany; that said Alexander was intoxicated and boisterous; that the brakeman and conductor, servants of the defendant, were in said coach and made no effort to remove said Alexander from the train; that when said train reached Silver street in New Albany, said Alexander stepped into the aisle of said coach, by the side of the brakeman, and pulled from his (Alexander's) pocket a pistol, from which pistol he unlawfully fired a shot toward the plaintiff, although the plaintiff had given him no provocation for said act; that the brakeman in charge of said train and in said passenger-coach could easily have prevented said Alexander from making said assault upon the plaintiff, but negligently and unlawfully permitted said Alexander to fire said shot at the plaintiff and to commit an assault and battery upon him; that the shot struck plaintiff in the left arm, seriously wounding him. The complaint sets out a particular statement of plaintiff's injury, and alleges that he was wholly without fault and that his injury was caused wholly through the negligence of the defendant and its said employes in charge of said train. The complaint is open to the objection urged against it that it contains some matters that are evidentiary, others by way of recital, and others that are conclusions of the pleader. These, of course, do not add to its sufficiency. It does, however, directly aver that, while the plaintiff and Alexander were passengers upon defendant's train, the brakeman could easily have prevented the assault, but negligently permitted said Alexander to shoot plaintiff although plaintiff had given Alexander no provocation, and that plaintiff's injuries were wholly due to the negligence of the defendant and its employes in charge of said train.
It is the duty of a common carrier to protect a passenger from the unprovoked assault of a fellow passenger, if there is reason to believe that it is threatened and can be prevented. This duty springs from a condition created by a third party, coupled with a knowledge by the carrier's servants that the condition exists, and with time enough intervening between the acquisition of the knowledge and the infliction of the injury to enable the servant of the carrier to protect the passenger from the third party's misconduct.
The verb "permit" imports knowledge of the act permitted, and the charge that the brakeman permitted the act of violence in question embraces the element of knowledge of the danger threatened or of the facts from which the danger may be anticipated.
A general averment of negligence is sufficient if a violation of duty is shown.
The further objection is made that, although the complaint counts upon the negligence of appellant's brakeman, there is no averment that the brakeman was acting within the scope of his employment when the alleged omission of duty occurred. The duty to protect passengers from the assaults of other passengers is among the recognized duties of a brakeman. It is alleged that he was in charge of the car as brakeman, and he is charged with having neglected this particular duty. Considering all the allegations, we think the complaint complies reasonably with the rules of pleading. Louisville, etc., R. Co. v. Kendall (1894), 138 Ind. 313, 36 N.E. 415.
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