Sheehan v. New York Cent. R. Co.

• Citation: 27 N.E.2d 100,108 Ind.App. 38
• Decision Date: 09 May 1940
• Docket Number: 16345.
• Parties: SHEEHAN v. NEW YORK CENT. R. CO.
• Court: Indiana Appellate Court

27 N.E.2d 100

108 Ind.App. 38

SHEEHAN v. NEW YORK CENT. R. CO.

No. 16345.

Appellate Court of Indiana, in Banc.

May 9, 1940

John W. Lyddick and Alex Pendleton, both of Gary, for appellant.

Abraham Halleck and W. Allen Somers, both of Rensselaer, for appellee.

DUDINE Judge.

This is an appeal from a judgment for defendant (appellee here) in a suit instituted by appellant Frank J. Sheehan against appellee, The New York Central Railroad Company to recover damages for injuries allegedly inflicted upon appellant by a fellow passenger while appellant was a passenger on appellee's train.

The issues were formed by a complaint in one paragraph and an answer in general denial. The cause proceeded to trial by a jury but at the close of plaintiff's evidence the court on appellee's request, instructed the jury to return a verdict in favor of the defendant; the jury returned such verdict and judgment was entered in accordance therewith.

There is but one error assigned upon appeal and that is claimed error in overruling a motion for new trial which was duly filed by appellant. The causes for new trial properly assigned and discussed in appellant's brief are: (1) Claimed error of the trial court in instructing the jury to return a verdict in favor of the defendant, and (2) the verdict is contrary to law.

Appellant's propositions may be summarized as follows (1) "A directed verdict for defendant is not proper except where there is total absence of evidence upon some issue essential to plaintiff's right to recover." (2) It is the duty of the carrier to exercise due care in protecting its passengers from violence of their fellow passengers. Both of said propositions are well founded in law. We recognize them as binding upon this court as general principles of law but they are not determinative of this appeal.

"It may be stated generally that, although common carriers are not insurers of the safety of their passengers they are in duty bound to protect them from the unprovoked assault or misconduct of a fellow passenger, where the servants of the carrier have knowledge of the existing conditions for a sufficient intervening time between the acquisition of knowledge and the injury to protect their passengers; and this is true where the carrier's servants have reason to anticipate from the existing conditions that the safety of the passengers is imperiled by the misconduct of a fellow passenger. [Citing authorities.]" Chicago, etc., R. Co. v. Fisher, 1915, 61 Ind.App. 10, at page 15, 110 N.E. 240, at page 241.

The evidence in the record consists of the testimony of but two witnesses, to-wit: Appellant and a district claim agent of appellee, both of whom testified as witnesses for appellant. The evidence of the claim agent is clearly irrelevant to the questions presented upon appeal. Appellant's testimony shows the following facts:

On January 7, 1936, at about 6:00 P. M., appellant boarded appellee's train at Gary, Indiana as a pullman passenger en route to Buffalo, New York. Finding his berth "made up" appellant proceeded to the rear of the train to find the lounge car. The first car that he entered, after leaving his pullman coach, was the dining car. Appellant testified that "the diner was filled with diners * * * a great many of them were young ladies, a few scattered men, and my attention was attracted to two young men who were making a general nuisance of themselves by annoying the passengers, going from one table to another and sorta leaning over the table and making remarks to the other passengers. The waiters were trying to quiet them down and shushing them and said 'You mustn't make so much noise or disturbance' but it apparently wasn't making much effect on the two men."

Appellant returned to the smoking compartment of his pullman coach which compartment was in the end of the coach next to the dining car. He had been reading his paper for about five minutes when he heard a...