The Louisville & Nashville Railroad Co. v. Bisch

• Decision Date: 01 November 1889
• Docket Number: 13,874
• Citation: 22 N.E. 662,120 Ind. 549
• Parties: The Louisville and Nashville Railroad Company v. Bisch
• Court: Indiana Supreme Court

22 N.E. 662

120 Ind. 549

The Louisville and Nashville Railroad Company v. Bisch

No. 13,874

Supreme Court of Indiana

November 1, 1889

From the Warrick Circuit Court.

Judgment reversed.

J. M Shackelford and S. B. Vance, for appellant.

G. F Denby, D. B. Kumler, A. Gilchrist and C. A. De Bruler, for appellee.

OPINION

Elliott, C. J.

The appellee entered a car at the rear end of a freight train standing on the appellant's track. He rightfully entered the car as a passenger. After remaining in the car a short time he walked out upon the rear platform, and while standing there the train was started with a sudden jerk and he was thrown to the ground and injured. There is evidence tending to prove that he was requested by the appellant's employees to leave the platform and enter the car, and that he disregarded this request or order, and remained on the platform. The evidence also shows that there were from fifteen to twenty freight cars attached to the locomotive, and there was much evidence to the effect that, because of the slack between the cars, a freight train can not be started without a jerk. The appellant, in his testimony, says: "I knew freight trains did not go as smoothly as a passenger train. If there had been no slack, there would have been no jerk."

The court instructed the jury that unless the plaintiff proved that he was not guilty of contributory negligence there could be no recovery, but there were no instructions defining contributory negligence, for all the instructions upon this subject were expressed in general terms. One of the instructions given by the court reads thus: "Even if the jury find from the evidence that the plaintiff had been warned against standing on the platform, and had been directed to go inside, and had disobeyed the instruction, still, if the jury also believe from the evidence that the conductor of the train, at the moment of giving the signal to start, actually saw the plaintiff on the rear platform of the caboose in the act of entering, or attempting to enter the caboose, and knew that he was in a dangerous position, and without giving him a reasonable time to enter, and that by a sudden jerk in starting the cars the plaintiff was thrown to the ground and injured, then the jury should find for the plaintiff." This instruction can not be rescued from condemnation.

Leaving out of consideration minor matters of objection, and placing our decision upon broad grounds, we adjudge that the instruction is so radically wrong as to compel a reversal of the judgment. The plaintiff, by refusing obedience to the directions given him, and by voluntarily remaining in a place of danger after warning, assumed the risk of injury. The case, as it appears on the hypothesis on which the instruction proceeds, is a stronger one than the ordinary case of contributory negligence, for the plaintiff did more than carelessly seek and remain in a place of danger, for he remained there in disobedience of directions given him, and despite the warnings which he received; he, in fact, assented to the injury. The case goes beyond the operation of the rule on the subject of contributory negligence, and comes within the scope of the maxim volenti non fit injuria. Around the central proposition that the plaintiff voluntarily assumed the risk by remaining in a place of danger in disobedience of directions and warnings, may be grouped various subsidiary doctrines which fortify and strengthen it.

A passenger is justified, as a general rule, in obeying the direction of the employees of the carrier, and if he receives injury in obeying them, the carrier is liable, even if it appears that if he had not obeyed he would have escaped injury. Cincinnati, etc., R. R. Co. v Carper, 112 Ind. 26, 29, 13 N.E. 122; Louisville, etc., R. R. Co. v. Kelly, 92 Ind. 371 (47 Am. Rep. 149); Terre Haute, etc., R. R. Co. v. Buck, 96 Ind. 346; Lake Erie, etc., R. W. Co. v. Fix, 88 Ind. 381; Pennsylvania Co. v. Hoagland, 78 Ind. 203; Pool v. Chicago, etc., R. W. Co., 53 Wis. 657, 11 N.W. 15; Hanson v. Mansfield R. W., etc., Co., 38 La. Ann. 111 (58 Am. Rep. 162); Filer v. New York, etc., R. R. Co., 59 N.Y. 351; St. Louis, etc., R. R. Co. v. Cantrell, 37 Ark. 519 (40 Am. Rep. 105); Fowler v. Baltimore, etc., R. R. Co., 18 W.Va. 579; Hickey v. Boston, etc., R. R. Co., 14 Allen 429; Railroad Co. v. Aspell, 23 Pa. 147 (62 Am. Dec. 323); Indianapolis, etc., R. R. Co. v. Horst, 93 U.S. 291, 23 L.Ed. 898; Lake Shore, etc., R. R. Co. v. Brown, 123 Ill. 162 (5 Am. St. Rep. 510, 14 N.E. 197). If the passenger may safely obey such directions, it must be for the reason that it is his duty to do so, and it follows that if he refuses to do so he is guilty of a breach of duty. One who is himself guilty of a breach of duty, and wrongfully remains in a place of danger, can not recover if that wrong was the proximate cause of his injury, although another may have also been in fault. To authorize a recovery the case must be one "of unmixed negligence." This case strikingly illustrates this rule, for, had the plaintiff entered...