The Indiana, Illinois And Iowa Railroad, Co. v. Masterson

• Decision Date: 22 October 1896
• Docket Number: 2,107
• Citation: 44 N.E. 1004,16 Ind.App. 323
• Parties: THE INDIANA, ILLINOIS AND IOWA RAILROAD, COMPANY v. MASTERSON
• Court: Indiana Appellate Court

44 N.E. 1004

16 Ind.App. 323

THE INDIANA, ILLINOIS AND IOWA RAILROAD, COMPANY v. MASTERSON

No. 2,107

Court of Appeals of Indiana

October 22, 1896

From the Starke Circuit Court.

Affirmed.

H. K Wheeler and A. I. Gould, for appellant.

J. W Nichols and C. C. Kelley, for appellee.

OPINION

DAVIS, C. J.

--This was an action by the appellee against the appellant for damages for injuries alleged to have been caused by the negligence of the appellant. A trial by jury resulted in a verdict and judgment in favor of appellee for $ 600.00.

Several errors have been assigned, but three questions only are discussed by counsel for appellant.

1. That appellee was guilty of contributory negligence.

2. That appellee assumed the risks which caused her injury when she took passage upon the freight train.

3. That appellant is not liable because the injury occurred in Illinois.

The evidence is in some respects conflicting, but there is evidence in the record fairly proving that appellee was, when injured, a passenger upon appellant's freight train; that by the negligent application of the air-brake the caboose was suddenly stopped in such a manner as to violently shake and jar the passengers from their seats, throwing appellee to the floor, injuring her in such a manner as to cause a miscarriage, and that such injury occurred in Indiana. In particular there is evidence showing that on one occasion she was standing in the act of getting a drink for her child, when by reason of the negligent application of the air-brake she was suddenly and violently thrown across the seat, severely hurting her and almost knocking her senseless. In this connection it is proper to say there was evidence of witnesses claiming to be experienced railroad men tending to prove that the engineer is, under ordinary circumstances, able to stop a freight train by the proper application of the air-brake without causing sudden and violent stopping, jerking or jarring of the caboose. In this instance the engineer had no actual knowledge of the fact that there were passengers in the caboose, although it was a common practice for appellant to accept and carry passengers on this freight train. The negligence of appellant, however, is not controverted on this appeal.

1. We are not prepared to say, as a matter of law, that under the circumstances of this case a passenger on a freight train who leaves her seat to get a drink of water for her child is guilty of contributory negligence. Pittsburg, etc., R. W. Co. v. Klitch, 11 Ind.App. 290, 37 N.E. 560, Marion St. R. R. Co. v. Carr, 10 Ind.App. 200, 37 N.E. 952; Louisville, etc., R. W. Co. v. Castello, 9 Ind.App. 462, 36 N.E. 299; Louisville, etc., R. W. Co. v. Sears, 11 Ind.App. 654, 38 N.E. 837; Wahl v. Shoulder, 14 Ind.App. 665, 43 N.E. 458.

2. It is next insisted that she assumed the risks.

Conceding that she assumed the risks incident to the usual and ordinary jerking and jarring of the caboose in stopping the freight train, she did not, in our opinion assume the additional and extraordinary risks growing out of the negligence of the...