Smith v. Louisville, Evansville And St. Louis Railroad Company

• Decision Date: 19 June 1890
• Docket Number: 14,347
• Parties: Smith v. The Louisville, Evansville and St. Louis Railroad Company
• Court: Indiana Supreme Court

24 N.E. 753

124 Ind. 394

Smith v. The Louisville, Evansville and St. Louis Railroad Company

No. 14,347

Supreme Court of Indiana

June 19, 1890

From the Floyd Circuit Court.

The judgment is affirmed, with costs.

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

A Dowling, for appellee.

OPINION

Berkshire, C. J.

The appellant commenced this action by filing the following complaint, omitting the caption:

"The plaintiff complains of the defendant and says that at the time of the grievances hereinafter set out, the defendant was a corporation, owning and operating a line of steam railroad from New Albany, Indiana, to Mt. Vernon, Illinois, and as such was a common carrier of freight and passengers; that on the 8th day of May, 1887, the plaintiff, not being in the employment or service of the defendant, was, by the invitation and permission of the conductor of such train riding upon a certain freight train of the defendant for the purpose of being carried from New Albany to a station on defendant's railroad called Milltown; that while so upon said train, and using due care and without his fault, the plaintiff was violently assaulted by one I. A. Turner, a servant of the defendant on said train, and was, with the wicked and malicious purpose of injuring plaintiff, thrown from said train and under the moving wheels, whereby he was mangled and bruised and caused great bodily and mental pain, and was forced to submit to the amputation of one of his legs, to his damage in the sum of six thousand dollars. The plaintiff avers that the other servants of the defendant upon said train had full knowledge of the wicked and unlawful intention of said Turner to assault and injure the plaintiff, but wholly failed and refused to interfere or protect this plaintiff, and by their negligence in so failing and refusing to deter the said Turner from his evil design, caused the injury to plaintiff aforesaid. The plaintiff avers that said injury was not caused by any negligence of the plaintiff, but solely by the negligence and wilful misconduct of the defendant and its servants as aforesaid."

The appellee addressed a demurrer to the complaint, which was sustained by the court, and the appellant reserved the proper exception.

The appellant having refused to amend his complaint, judgment was rendered against him for costs.

The only error which is assigned calls in question the ruling of the court in sustaining the demurrer to the complaint. We do not think that the court erred in its ruling.

It appears that the appellant was on board of one of the appellee's freight trains when the alleged assault occurred. But it is not alleged that he was a passenger on the train; the allegation is, that he was thus there on the invitation and with the permission of the conductor of the train. It does not appear that the rules and regulations of the appellee, or its practice independent thereof, extended to the public the privilege of travelling upon its freight trains; nor is it alleged that the appellant did not know when he went upon the train that it did not carry passengers. The rule is that freight trains are confined to the transportation of freight exclusively; to this rule there are exceptions. The character of the train was notice sufficient to put the appellant upon inquiry as to whether or not it was his right to board it as a passenger.

The trial court could not presume against the rule and in favor of the exception that the appellant was a passenger on the train.

If the appellant was in fact a passenger on the train, the facts creating the relation of carrier and passenger should have been pleaded. Did the appellee, by established usage, or by its rules and regulations, allow passengers upon its freight trains, then the proper allegations should have been made.

Going aboard of the train by the invitation and permission of the conductor did not of itself constitute the appellant a passenger. Eaton v. Delaware, etc., R. W. Co., 57 N.Y. 382 (15 Am. Rep. 513); Houston, etc., R. W. Co. v. Moore, 49 Tex. 31 (30 Am. Rep. 98).

In the last cited case it is said: "It may be true, where a railroad company habitually permits passengers to travel on its freight trains, notwithstanding it may by regulation prohibit it, that the company will incur the same responsibility to such passengers as if they were on the regular passenger cars. But when it is shown that the regulations of the company absolutely forbid passengers riding on freight trains, and where there are no cars attached to such trains except those ordinarily accompanying trains exclusively for freight, or such as, by their appearance and manner in which they are filled up, could not be properly regarded as inviting passengers into the train, the burden of proving that the party injured was justified in going upon such train as a passenger properly devolves upon those who sue for damages resulting from injuries sustained by him while on such train."

In the first cited case the facts, briefly stated, were: The plaintiff, being under twenty-one years of age, was, with two other boys, walking toward his home on the railroad track, and having been passed by a coal train moving slowly, was beckoned by the conductor in charge of it, who was then on the rear car or caboose, to get upon the train. The plaintiff and his associates acted accordingly. The conductor afterwards solicited them to go with him on his return trip to a place called Phillipsburgh, where he would procure situations for them as brakemen. They went with him. The train towards morning stopped on the track at a point where there was a sharp curve in the road. In consequence of the conductor's negligence a collision occurred with another train, and the plaintiff was seriously injured.

The court holds that railroad companies, like other common carriers, have a right to make reasonable rules and regulations for the management of their business, and while they may, if they see fit, have the freight and passenger business carried on upon a single train under one management they may also completely separate their transactions, by arranging them in...