The New York, Chicago and St. Louis Railroad Company v. Mushrush
| Decision Date | 07 June 1894 |
| Docket Number | 1,185 |
| Citation | 37 N.E. 954,11 Ind.App. 192 |
| Parties | THE NEW YORK, CHICAGO AND ST. LOUIS RAILROAD COMPANY v. MUSHRUSH |
| Court | Indiana Appellate Court |
J Morris, R. C. Bell, J. M. Barrett and S. L. Morris, for appellant.
P Crumpacker and E. D. Crumpacker, for appellee.
OPINION
The appellee sued to recover damages for the death of his minor son, who went to the depot to meet his sister who was expected to arrive on a train due at Hammond about seven o'clock in the evening. As the train was starting, the boy, while walking along the platform, stumbled and fell over some blocks and other obstructions upon the platform which he could not and did not see, and was thrown under the wheels of the car and killed. It is alleged that all this happened without any fault or negligence upon the part of the appellee or his son, and by reason of the negligence of the appellant in carelessly and negligently permitting said obstructions to be upon said platform, and failing to have the platform properly and sufficiently lighted.
The learned counsel for appellant urge the insufficiency of the complaint, which was tested by demurrer. They claim, with apparent earnestness, that because the boy is shown by the complaint to have been only twelve years old he must, in the absence of any specific averment upon that subject, be deemed to have lacked sufficient judgment and discretion to go upon this mission, and that therefore the appellee was negligent in sending him, notwithstanding the general allegation that he was without fault. This court certainly can not say, as a matter of law, that a boy twelve years old is incapable of taking care of himself at a depot. It was at the most for the jury to determine. Terre Haute, etc., R. W. Co. v. Tappenbeck, 9 Ind.App. 422, 36 N.E. 915.
It is also urged that in other particulars the specific facts set forth fail to show the exercise of due care upon the part of both father and son.
The rule is now well settled that the general allegation of want of negligence is sufficient unless the facts set forth affirmatively show negligence. It is not enough to overthrow the general averment that such specific facts fail to show want of negligence. Board, etc. v. Leviston, 133 Ind. 39; Evansville, etc., R. W. Co. v. Athon, 6 Ind.App. 295, 33 N.E. 469.
We do not think there can be any doubt as to the sufficiency of the complaint.
Error is also assigned in this court upon the overruling of the motion for a new trial.
The evidence in the case is in some respects confused and unsatisfactory and in its material features absolutely in conflict. There is testimony to show that the platform was 150 or 200 feet long; that it was only lighted by the light shining from the car windows; that this left it so dark that objects on the platform near the cars could not be seen. There is also testimony that they could be plainly seen. There is evidence that blocks and chips and other stuff, left over from building the platform, were upon it at the point where the boy fell, both at that time and also about one hour and twenty minutes afterwards. There is evidence on the other hand that the platform was entirely free from any obstructions.
Some witnesses testify that the boy was walking slowly along on the platform near the car and toward his home when he stumbled and fell; one says he was going in just the opposite direction; others testify that he was jumping on and off the car steps and missed his hold and fell.
It was peculiarly the province of the jury, under the supervision of the trial court, to determine which of these conflicting accounts of the occurrence was the true one. An examination of the evidence convinces us that the conclusion reached by the jury was not unsustained by the evidence. We can not, therefore, disturb it. Marion Street R. R. Co. v. Carr, 10 Ind.App. 200, 37 N.E. 952, and cases cited.
We can not regard as tenable the position taken, that it was necessarily negligence for the boy to walk slowly along the station platform within a foot and a half of the train moving at the rate of two miles an hour. The case of Chicago, etc., R. W. Co. v. Fisher, 55 Am. and Eng. R. R. Cases 223, does not sustain the position. Nor can we regard him as necessarily a trespasser because he failed to leave the platform and take the shortest route home. Keefe v. Boston, etc., R. R. Co., 142 Mass. 251, 7 N.E. 874.
It was the duty of the appellant to keep its station and station platform in a reasonably safe condition and to have them reasonably well lighted. For a negligent failure to do this it was answerable to its passengers. Louisville, etc., R. W. Co. v. Lucas, 119 Ind. 583, 21 N.E. 968; Pennsylvania Co. v. Marion, 123 Ind. 415, 23 N.E. 973.
Nor is this duty limited to actual passengers only, but it includes those who come to meet friends or see them safely off, or, as aptly expressed, "to welcome the coming or speed the parting guest." 2 Woods R. W. Law, section 310, pp. 1334 and 1335 and notes; Pierce on Railroads 275; Hamilton v. Texas, etc., R. W. Co., 64 Tex. 251; Louisville, etc., R. R. Co. v. Berry, 88 Ky. 222, 10 S.W. 472; McKone v. Michigan Cent. R. R. Co., 51 Mich. 601, 17 N.W. 74; Doss v. Missouri, etc., R. R. Co., 59 Mo. 27.
The verdict of the jury allowed $ 1,000 damages. It is insisted that this is excessive because there was no proof touching the value, present and prospective, of the boy's services. It was shown by the evidence that the deceased was nearly twelve years old, a healthy boy, ordinarily bright and intelligent, who had gone to school, learned to read, write and cipher, was a good boy to work and helped do chores about the house, run errands and feed the stock. These facts, under the authorities, furnished sufficient data to enable the jury, by the aid of the ordinary, every-day knowledge presumably common to every man, to assess not only nominal but reasonable substantial damages for the loss of his services until twenty-one.
The only authority cited by appellant's counsel to sustain their position upon this point is Houston, etc., R. W Co. v. Cowser, 57 Tex. 293. The rule laid down in that case is with reference to the necessity of proving the wages earned by an adult who was at the time working for wages. The court expressly distinguishes that case from one where the subject of consideration was the value of the...
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New York, C. & St. L.R. Co. v. Mushrush
... ... , Special Judge.Action by Thomas Mushrush against the New York, Chicago & St. Louis Railroad Company to recover damages for the death of his minor ... ...