Pittsburgh, Cincinnati, Chicago & St. Louis Railway Co. v. Miller

• Decision Date: 11 May 1904
• Docket Number: 4,527
• Citation: 70 N.E. 1006,33 Ind.App. 128
• Court: Indiana Appellate Court
• Parties: PITTSBURGH, CINCINNATI, CHICAGO & ST. LOUIS RAILWAY COMPANY v. MILLER

70 N.E. 1006

33 Ind.App. 128

PITTSBURGH, CINCINNATI, CHICAGO & ST. LOUIS RAILWAY COMPANY v. MILLER

No. 4,527

Court of Appeals of Indiana

May 11, 1904

From Floyd Circuit Court; E. G. Henry, Judge pro tem.

Action by William L. Miller against the Pittsburgh, Cincinnati Chicago & St. Louis Railway Company. From a judgment for plaintiff, defendant appeals.

Reversed.

M. Z Stannard, G. B. McIntyre, J. B. James and W. V. Bulleit, for appellant.

C. L Jewett and H. E. Jewett, for appellee.

OPINION

ROBY, J.

--Action for damages on account of personal injuries. Judgment for $ 2,750. Appellee was a passenger on one of appellant's passenger trains running between New Albany and Jeffersonville. He desired to alight at Ninth street station in the former city, to which point he had purchased his ticket. No question is made as to the sufficiency of the complaint, in so far as appellant's negligence is concerned. It is averred: That said station was reached about five minutes before 11 o'clock p. m. on January 29, 1901; that the night was dark and stormy, much rain having fallen, rendering appellant's platform slippery and unsafe; that there was no light at said platform, and it was impossible to see the same when alighting upon it. As the train neared Ninth street, the brakeman announced said station, and the air-brakes were applied for the purpose of stopping at the platform. The brakeman thereupon went out of the door and down the steps to the platform, but did not take his lighted lantern, with which he might have lighted up said steps so that plaintiff could have safely left the car. The conductor did not go out of the car, but remained within, retaining in his possession both his own lantern and that of the brakeman. Appellee, when the station was announced, went forward to the front door of the car in which he was riding, and looked down at said platform for the purpose of alighting thereon. The further averments of the complaint are as follows: "Said train at the time appeared to have stopped, and the action of said brakeman in going down in front of the plaintiff led plaintiff to believe that said train had stopped at said platform. On account of the darkness and the failure to have any lights at said platform, and the failure of said brakeman to have his lantern with him upon said platform, the plaintiff was unable to see whether said train had actually stopped, but he believed the same had stopped, and he could safely alight on said platform. The plaintiff avers that thereupon, using due care, he stepped from the steps of said car to said platform, but because of the wet and slippery condition of the platform, and the fact that said train was still moving, he was at once thrown violently to said platform, injuring, wounding, and bruising him in and upon his body, back, and sides, permanently disabling him. The plaintiff avers that at the time he stepped from said train, although said train appeared to have stopped, said train was in fact slowly moving, but, being closely coupled together and moving noiselessly upon a smooth track in the darkness, plaintiff was led to believe that said train had stopped. After plaintiff stepped upon said platform and was thrown down, as aforesaid, said train continued to run for a distance of about ten feet, and required a second application of the brakes to bring the same to a full stop, because of the negligent failure of those in charge of the locomotive and engine to apply said brakes to a sufficient extent when the same were first applied. Plaintiff says that by reason of being so thrown to the platform of the defendant and bruised and hurt, as aforesaid, he has been permanently injured," etc. "Wherefore," etc.

While various acts of negligence upon the part of appellant are charged, it is made affirmatively to appear that the fact that the train was moving at the time appellee alighted contributed to cause the injury complained of. If the complaint shows that appellee was himself at fault in leaving the train as he did, then the demurrer to the complaint should have been sustained. The pleading discloses that appellee voluntarily alighted from a moving train. Such act was not...