The Louisville, New Albany and Chicago Railway Company v. Costello

• Court: Indiana Appellate Court
• Writing for the Court: DAVIS, C. J.
• Citation: The Louisville, New Albany and Chicago Railway Company v. Costello, 36 N.E. 299, 9 Ind.App. 462 (Ind. App. 1894)
• Decision Date: 23 January 1894
• Docket Number: 998
• Parties: THE LOUISVILLE, NEW ALBANY AND CHICAGO RAILWAY COMPANY v. COSTELLO

36 N.E. 299

9 Ind.App. 462

THE LOUISVILLE, NEW ALBANY AND CHICAGO RAILWAY COMPANY v. COSTELLO

No. 998

Court of Appeals of Indiana

January 23, 1894

Petition for rehearing overruled April 4, 1894.

From the White Circuit Court.

Judgment reversed.

E. C Field, W. S. Kinnan, E. B. Sellers and W. E. Uhl, for appellant.

T. F Palmer and C. C. Spencer, for appellee.

OPINION

DAVIS, C. J.

The complaint in this case is as follows:

"The plaintiff complains of the defendant, and says that defendant is and was, at the time hereinafter mentioned, a corporation, duly organized under the laws of the State of Indiana, and owned and operated, as a common carrier for hire, a line of railroad known as the Louisville, New Albany and Chicago Railway, passing through and from the town of Rensselaer, in the county of Jasper, in the State of Indiana, to and through the town of Reynolds, in the county of White, in said State, with the track, cars, locomotives and other appurtenances thereto belonging; that on the 13th day of February, 1892, the defendant, as a common carrier of passengers for hire, for a valuable consideration paid by plaintiff to defendant, the same being the full regular fare demanded by defendant for one first class passage from said town of Rensselaer to said town of Reynolds, received plaintiff as a passenger on a regular passenger train from said town of Rensselaer to said town of Reynolds; that when the train upon which plaintiff had so taken passage arrived at said town of Reynolds, at the platform provided by defendant for passengers to alight upon, at the usual place where passengers upon defendant's trains getting off at said town of Reynolds usually alighted, plaintiff, being then an old man, sixty-five years of age, having been informed by defendant's agents and servants that he had arrived at his said destination, went out upon the platform of the car of said train in which he had been riding, and said car then being fully stopped, he, without negligence, fault, or carelessness upon his part, attempted to alight upon said platform, but the agents and servants of defendant, having charge and control of said train and the cars thereof, negligently and carelessly and wrongfully failed and refused to stop said train a proper and sufficient length of time to enable and allow plaintiff to get safely therefrom, and the agents and servants of defendant then and there, while plaintiff was in the act of attempting to get off said train, suddenly, negligently, carelessly, and wrongfully, and without fault or negligence on the part of plaintiff, started said train in motion, and by reason thereof plaintiff was violently thrown from said car upon the ground, between a car of said train and the platform, and was thus and thereby seriously and permanently injured, in this, to wit:

"The bones of plaintiff's left foot were broken, crushed, mangled, and dislocated, his right leg was cut and bruised, his right shoulder was bruised, strained, and hurt, and his nervous system was shocked and permanently injured; that in consequence of said injuries plaintiff has ever since been in and suffered great pain and mental and bodily affliction, and is yet sick and disabled, and can never entirely and permanently recover, and he is, and will be, prevented from attending to his business and caring for his family; that he has also been to great expense and loss of time in procuring necessary medical and surgical attendance, and in endeavoring to become relieved and cured of said injuries. By reason of the negligence, careless, and wrongful acts of defendant and defendant's servants, as aforesaid, plaintiff has been damaged in the sum of five thousand dollars.

"Wherefore, plaintiff demands judgment for five thousand dollars, and all other proper relief in the premises."

The special verdict returned by the jury is as follows:

"We, the jury, return the following special verdict in the above cause: The defendant is now, and was on the 13th day of February, 1892, a corporation duly organized, and owned and operated, as a common carrier of passengers and freight for hire, a line of railway known as 'The Louisville, New Albany & Chicago Railway,' which then passed, and now passes, through and from the town of Rensselaer, in the county of Jasper, in the State of Indiana, to and through the town of Reynolds, in the county of White, in said State, with the cars, locomotives, and other appurtenances thereto belonging; that on the 13th day of February, 1892, the defendant, as a common carrier of passengers for hire, for a valuable consideration, which was paid by the plaintiff to defendant, received plaintiff as a passenger on a regular passenger train of the defendant known as 'The Milk Train,' from said town of Rensselaer to said town of Reynolds; that when said passenger train, upon which plaintiff had so taken passage, arrived at said town of Reynolds, it stopped at the platform provided by defendant for passengers to alight upon, and at the usual place where passengers upon defendant's trains were accustomed to alight and get on and off said trains; that plaintiff, at said platform, while said train upon which he was riding was standing still, carefully and without unreasonable delay, and without fault or negligence on his part, having been informed by defendant's agents and servants that he had arrived at said town of Reynolds, went out upon the platform of the car of said train in which he had been...