The Chicago, St. Louis and Pittsburgh Railroad Company v. Bills
| Citation | 20 N.E. 775,118 Ind. 221 |
| Decision Date | 05 April 1889 |
| Docket Number | 13,626 |
| Parties | The Chicago, St. Louis and Pittsburgh Railroad Company v. Bills |
| Court | Supreme Court of Indiana |
From the Madison Circuit Court.
The judgment is reversed, with costs.
N. O Ross, for appellant.
M. S Robinson and J. W. Lovett, for appellee.
Bills sued the railroad company, and charged in his complaint that he had sustained grievous injuries to his person by being expelled from one of the company's passenger trains with unnecessary force. The case was tried upon an amended complaint, and the plaintiff had judgment upon the special verdict of a jury. The defendant pleaded the statute of limitations, alleging in its plea that by the original complaint, which had been filed within two years from the date of the alleged injury, the plaintiff sought to recover for injuries sustained to his person and property while being wrongfully expelled from the defendant's cars; that the complaint to which the plea was filed counts upon a right to recover for injuries suffered by being expelled from the train with unnecessary force, and that the amended complaint was not filed within two years from the date on which the cause of action therein mentioned accrued. The court committed no error in sustaining a demurrer to the plea. An amended complaint has relation ordinarily to the date of the commencement of the action, and is regarded as a matter occurring in the continuation or progress of the original cause. Unless, therefore, some new claim or title not previously asserted, is set up by way of amendment, a plea of the statute of limitations will be determined with reference to the date when the action was originally commenced. School Town of Monticello v. Grant, 104 Ind. 168, 1 N.E. 302; Evans v. Nealis, 69 Ind. 148. See, also, Sidener v. Galbraith, 63 Ind. 89, and cases cited.
Conceding the rule to be substantially as above enunciated, it is contended on the appellant's behalf that the answer was sufficient, nevertheless, because, the argument is, the amended complaint sets up a claim or cause of action not previously asserted. We do not concur in this view. Both complaints involve the same transaction. The gravamen, or substantial grievance complained of in both, is the personal injury suffered by the plaintiff in being ejected from the defendant's train. The original complaint proceeded upon the theory that the plaintiff sustained an injury to his person by being wrongfully expelled from a train on which he had a right to be. The amended complaint is predicated upon the same transaction and injury, but proceeds upon the theory that the plaintiff may have been wrongfully or carelessly on the train, and that he was ejected therefrom with unnecessary force, to his injury.
The first complaint was more comprehensive than the last, and embraced elements of damage which were not in the amended complaint, but the last embraced nothing that was not covered by the first.
It is next contended that the court erred in rendering judgment in favor of the plaintiff below on the special verdict returned by the jury. This contention rests upon the proposition that it is neither directly nor inferentially found that the plaintiff was without contributory fault on his part.
The doctrine of contributory negligence is not relevant to a case like the present, and parties must be consistent with the theory on which their case proceeds, let the consequences fall where they may.
As we have seen, the action is to recover damages for injuries alleged to have been sustained by the plaintiff in being ejected from the defendant's train with excessive force and violence. Such an act is essentially unlawful. It is equivalent to an assault and battery, and no degree of carelessness on the part of the person assaulted furnishes any excuse for an unlawful invasion of the right of personal security. Beach Cont. Neg., section 22.
Contributory negligence is no defence against an intentional wrong. Every railroad company is bound to take notice of the liability of persons about to become passengers to board the wrong train, either by mistake or through ignorance or neglect. Instead of subjecting such persons to needless violence, it is the duty of the company to afford them all reasonable protection, and while no one is entitled to remain on a train in defiance of the rules and regulations of the company, its duty is to stop its train at some suitable place...
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