Terre Haute, Indianapolis & Eastern Traction Co. v. Scott

• Decision Date: 18 February 1926
• Docket Number: No. 25130.,25130.
• Citation: 197 Ind. 587,150 N.E. 777
• Court: Indiana Supreme Court
• Parties: TERRE HAUTE, INDIANAPOLIS & EASTERN TRACTION CO. v. SCOTT.

197 Ind. 587

150 N.E. 777

TERRE HAUTE, INDIANAPOLIS & EASTERN TRACTION CO.

v.SCOTT.^*

No. 25130.

Supreme Court of Indiana.

Feb. 18, 1926.

Appeal from Circuit Court, Boone County; Frank E. Hutchinson, Judge.

Action by Otis Scott against the Terre Haute, Indianapolis & Eastern Traction Company. Judgment for plaintiff, and defendant appeals. Cause transferred from the Appellate Court under Burns' Ann. St. 1926, § 1357, Acts 1901, c. 247, § 10. Reversed, with directions.

Superseding opinion of Appellate Court, 148 N. E. 335, and 149 N. E. 454.

McNutt, Wallace, Harris & Randel, of Terre Haute, for appellant.

H. W. Phipps, of Louisville, Frank S. Roby, of Zionsville, and James W. Sweeney, of Jeffersonville, for appellee.

EWBANK, C. J.

Appellee, as plaintiff, sued appellant, as defendant, seeking to recover damages for personal injuries suffered in an encounter with robbers on one of defendant's interurban cars. Defendant's motion to make certain averments of the amended complaint more specific having been overruled, it then filed a demurrer to the amended complaint, for the alleged reason that it did not state facts sufficient to constitute a cause of action against defendant, and filed a memorandum specifying that the amended complaint did not plead facts showing that defendant had violated any duty which it owed to plaintiff, and did not contain any charge of the negligent violation of such a duty, nor any charge of negligence. This demurrer was overruled, and defendant excepted. Defendant then filed an answer of general denial, and the issue thus formed was submitted to a jury for trial, and a verdict was returned in favor of plaintiff for $2,000 damages. A motion for a new trial for the alleged reasons, among others, that the trial court erred in giving each of certain instructions was overruled, and defendant excepted. Overruling the demurrer to the complaint and overruling the motion for a new trial are assigned as errors.

The amended complaint alleged, in substance, that plaintiff was a passenger on an interurban car on defendant's railroad, riding north from the station where he entered the car toward the city of Terre Haute; that the car was being operated by defendant by a conductor and motorman in its employ, who were “required to safeguard the passengers thereon, and said employees were each required to take notice of peril and danger to the passengers of said car when the same was discovered, or could be discovered by the exercise of reasonable care by them; that said conductor was vested with police power, and it was his duty to protect defendant's passengers from violence, assault, or robbery”; that said car contained a large number of passengers; “that between the stations of Pimento and Terre Haute the said car was boarded by two robbers, who proceeded to hold up and rob this plaintiff and the other passengers by violence and by putting them in fear; that said robbers with guns intimidated the passengers, including this plaintiff, all of which defendant's conductor and motorman knew, and knowing which they willfully and unlawfully refused and failed to interpose; that this plaintiff called upon defendant's said employees to defend him and assist him in the apprehension of said robbers and to arrest and detain said robbers then violating the law, but the said conductor climbed out of the window of the car and fled, leaving plaintiff to make such defense for himself and his property as he could; that this plaintiff did endeavor to protect himself against said robbers and to prevent himself from being robbed by grasping the revolver then and there held by one of said robbers and struggling for the possession of the same; that this plaintiff was unable to overcome said robber without assistance, which said employees then and there refused to render, and that as a result thereof this plaintiff, in his struggle with said robber, was severely injured; *** and that such injuries were received in an effort to protect himself and his property after the defendant's said employees had failed and refused to give such protection; *** and (after describing his injuries) that plaintiff's injuries were caused wholly by the failure of defendant's agents and employees to give him that protection to which he was entitled as a passenger in defendant's passenger car, and without any fault of the plaintiff.”

The motion to make the complaint more specific asked that plaintiff be required to state the facts on which he based each of the conclusions as follows: (1) That the trainmen were “required to safeguard the passengers thereon”; ((2) that “said employees were each required to take notice of peril and danger to the passengers of said car when the same was discovered or could be discovered by the exercise of reasonable care by them”; (3) “that said conductor was vestedwith police power”; (4) that “it was his duty to protect defendant's passengers from violence, assault, or robbery”; (5) that “plaintiff's injuries were caused wholly by the failure of defendant's agents and employees to give him that protection to which he was entitled as a passenger in defendant's passenger car”; and (6) that when the conductor fled he did so, “leaving plaintiff to make such defense for himself and his property as he could.”

[1] We think as to the specifications numbered 5 and 6 that this motion to make the averments of the complaint more specific in the particulars mentioned was well taken. Therefore overruling the motion must be deemed a decision by the trial court, procured by and binding upon the plaintiff, that all the facts relied on by him to support the general averments of conclusions that plaintiff's injuries were caused by the failure of defendant's employees to protect him, and that he was left to make such defense as he could, were already stated in the amended complaint, and no facts not therein alleged will be implied by reason of the allegations of conclusions which were thus unsuccessfully challenged by said motion. Terre Haute, etc., T. Co. v. Phillips, 132 N. E. 740, 742, 191 Ind. 374, 380;Tecumseh, etc., M. Co. v. Buck, 135 N. E. 481, 483, 192 Ind. 112, 128;Enterprise P. & P. Co. v. Craig (Ind.) 144 N. E. 542, 543;Payne v. Shelton, 134 N. E. 919, 78 Ind. App. 123, 126.

The foregoing complaint, as thus construed, did not aver any facts tending to show that defendant's employees could have coped successfully with the armed robbers, or by the exercise of reasonable care could have prevented the injury complained of. It stated no facts tending to show that the conductor or motorman, by the exercise of reasonable care, with the means at their command, could have protected plaintiff from the robbery and prevented the robbers from injuring him. And, although it alleged a number of conclusions, as above set out, it did not even allege a conclusion to that effect. And it did not charge that anything alleged to have been done or omitted by the defendant or its employees was negligently done or omitted. On the contrary, it expressly alleged that the employees “willfully” refused to interfere. The nearest it came to alleging that the trainmen negligently failed to do anything they could have done to protect plaintiff was the allegation that plaintiff's injuries were caused wholly by the failure of defendant's employees to give him that protection to which he was entitled as a passenger. But even this did not characterize such failure as negligent, while it stated a mere conclusion drawn from undisclosed facts, and the plaintiff refused, under the sanction of the ruling of the trial court, to set out any facts in support of such conclusion when called on to do so by a motion to make the complaint more specific.

The felonious act of the robbers, committed while they were in defendant's car, was not the foundation of plaintiff's right of action against the defendant, if he had one. But whatever right of action he may have had, if any, was based upon the facts that circumstances existed by reason of which defendant owed plaintiff a duty to protect him from the injury he sustained, and that defendant and its servants either did something which the law required them to refrain from doing or omitted to do something which the law required them to do, under those circumstances, and thereby violated such duty. In other words, any responsibility of the carrier for injuries sustained by a passenger through the wrongful acts of robbers who invaded the car on which he was riding does not flow...