The Louisville, Evansville and St. Louis Consolidated Railroad Company v. Bean
| Decision Date | 14 February 1894 |
| Docket Number | 1,079 |
| Parties | THE LOUISVILLE, EVANSVILLE AND ST. LOUIS CONSOLIDATED RAILROAD COMPANY v. BEAN |
| Court | Indiana Appellate Court |
From the Warrick Circuit Court.
Judgment affirmed.
J. E Iglehart and E. Taylor, for appellant.
W. A Traylor and W. S. Hunter, for appellee.
Appellee, a passenger upon appellant's train, while getting off the car at his station, fell to the ground and was injured, as he alleges, by reason of an insufficient platform and the appellant's carelessness and negligence in suddenly starting the train as he was in the act of getting off, without allowing him a reasonable time to reach the platform.
Over appellant's motion for a new trial, and exception, judgment was rendered in favor of appellee.
The only questions presented to us relate to the instructions.
The want of skill, if any, on the part of appellant's servants, was properly in issue under the general charge of negligence.
In Shear. & Red. on Neg., section 3, it is said: "Negligence, constituting a cause of civil action, is such an omission, by a responsible person, to use that degree of care, diligence and skill which it was his legal duty to use for the protection of another person from injury, as, in a natural and continuous sequence, causes unintended damage to the latter."
So, also, in Heaven v. Pender, 11 Q. B. Div. 503: "Actionable negligence consists in the neglect of the use of ordinary care or skill towards a person to whom the defendant owes the duty of ordinary care and skill, by which neglect the plaintiff has suffered injury to his person or property."
Whether the evidence presented to the jury made out a case of want of skill upon the part of the company's servants to properly manage the train, or a failure to use and apply that skill which they really possessed, was for the jury to determine.
There was evidence tending to show that the train was in motion when appellee stepped from the car step to the platform, and that the brakeman called to him not to get off. The brakeman says appellee was then on the last, or next to the last, step. Appellee says the cars were stationary until just as he stepped off, when they started; that he heard some one call to him not to get off, but that he was then in motion and could not stop, being just in the act of leaving the car.
A part of one instruction asked, reads thus: "One who jumps from a train, not to avoid impending peril, but to avoid being carried beyond his station, is guilty of negligence, and can not recover for injuries sustained thereby."
Another reads: "If the jury find that the plaintiff undertook to get off the train after it began to move, he was guilty of contributory negligence, and can not recover."
These instructions call upon us to determine whether or not it is necessarily negligence per se for a passenger to step from a moving car to the platform, however slight the motion may be.
Whatever may be the rule adopted in other jurisdictions, the authority of the decisions in our own State must be held to adjudge the proposition against appellant's contention.
It is only where the facts are undisputed and but one inference can be reasonably drawn therefrom, that the court will adjudge negligence or contributory negligence as a matter of law. Cincinnati, etc., R. W. Co. v. Grames, 136 Ind. 39, 34 N.E. 714, and cases cited; Citizens' Street R. R. Co. v. Spahr, 7 Ind.App. 23, 33 N.E. 446, and cases cited.
As early as Evansville, etc., R. R. Co. v. Duncan, 28 Ind. 441, our Supreme Court, while considering an instruction similar to those under consideration, said: "If the leap was made under such circumstances that a person of ordinary caution and care would not have apprehended danger therefrom, then it was not such an act of carelessness as would relieve the defendant from the responsibility otherwise resting upon it."
In Jeffersonville, etc., R. W. Co. v. Hendricks Admr., 41 Ind. 48 (66), the court makes this declaration concerning the statement of a former decision: ...
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