The Pennsylvania Company v. Marion
| Decision Date | 16 December 1885 |
| Docket Number | 12,110 |
| Citation | 3 N.E. 874,104 Ind. 239 |
| Parties | The Pennsylvania Company v. Marion |
| Court | Indiana Supreme Court |
From the Owen Circuit Court.
The judgment is reversed, with costs, with instructions to the court below to sustain the demurrer to the complaint, with leave to the plaintiff to amend, and for further proceedings.
S. O Pickens, for appellant.
J. C Robinson and I. H. Fowler, for appellee.
The complaint in this case avers that, on the 6th day of December, 1882, the plaintiff took passage on one of the defendant's trains at Gosport, in Owen county, to be carried thence to Mundy's Station, a regular passenger station on the defendant's line; that about a half mile from the station, which was reached about 11 o'clock A M., the train on which he was proceeding slacked up so that when it reached the station it was moving at a very slow rate of speed, so that the plaintiff could have alighted therefrom with safety if there had been a suitable platform or other suitable place prepared for passengers to step upon when leaving the train; that there was a passenger depot and a platform for passengers to get on and off trains at Mundy's Station, but that the platform had been suffered to get out of repair and wholly unsuitable for the reception of passengers; that it had settled down, or become depressed in the middle so as to form an inclined plane from the car to the center of the platform. It is averred that while the train was running at a very slow rate of speed, and without any fault or negligence on his part, the plaintiff stepped upon the platform without any knowledge of its defective condition, when, owing to the inclination in the platform, his feet flew from under under him, and he was thrown under the train, from which he suffered injury resulting in the necessity of having his right arm amputated.
The question is presented whether the facts thus stated constitute a cause of action. It is nowhere averred in the complaint, in terms, that the defendant was guilty of any negligence, or that anything was done or omitted negligently or carelessly. The plaintiff relies upon the facts stated to raise the inference or presumption of negligence without direct averment, and in this it may be said he has adopted, to say the least, an extremely hazardous method of pleading.
In all common law actions, the basis of which is the negligence of the defendant, negligence or its equivalent must be directly averred, or such facts must be stated as that a presumption of negligence arises.
It must appear from the complaint, either by direct averment or from the statement of such facts as to a certainty raise the presumption, that the injury was the result of the defendant's negligence, or that it was purposely committed. Baltimore, etc., R. W. Co. v. Anderson, 58 Ind. 413, and cases cited; Indianapolis, etc., R. R. Co. v. Brucey, 21 Ind. 215; Terre Haute, etc., R. R. Co. v. Smith, 19 Ind. 42; Dyer v. Pacific Railroad, 34 Mo. 127; Thompson Neg., p. 1246.
Do the facts averred raise a presumption of negligence? The plaintiff, having voluntarily left his seat and alighted upon the platform while the train was in motion, is not in a position to claim the benefit of the well established rule which raises a presumption of negligence in favor of a passenger who, while conforming to the regulations of the carrier, or while passively seated in a car, sustains an injury in consequence of the car being thrown from the track, or other mishap to the train. It is only in cases where the deliberate volition and voluntary action of the passenger are not involved that such presumption arises. Speaking of this rule, it has been said: Thompson Car., p. 214. 2 Wood Railway Law, p. 1100.
Adopting the foregoing statement, we will consider briefly the supposed inculpatory statements contained in the complaint. The only matter of grievance charged is that the defendant suffered its platform at Mundy's Station to become out of repair; that it was so depressed in the center as to incline from that point toward the cars. The extent of this inclination is not averred, nor is it even stated that it rendered its proper and intended use dangerous. The strongest expression contained in the complaint, implying a disregard of the defendant's duty in respect to its platform, is, that it was "out of repair," and "wholly unsuitable for the reception of passengers." The only particular in which it was out of repair and unsuitable, as appears from the complaint, was its inclination from the cars toward the center.
Without more, we are unable to say, as matter of law, that this constituted negligence. Especially is this so, when we are asked to infer negligence in favor of the plaintiff, who shows in his complaint that he left the train while it was in motion, and, as we must presume, without the knowledge, consent or direction of the defendant's employees. To authorize a recovery for an injury so received, in any case, the negligence of the carrier ought not to be left to inference upon an equivocal statement of facts.
While it is the duty of a railroad company to keep its platform and approaches safe and convenient for the ingress and egress of passengers to and from its cars, the rigor of the rule which requires it, out of considerations of public policy, to exercise the highest possible diligence for the benefit of the passenger while in the actual progress of his journey and holds it responsible for the slightest defect in its machinery, track and appliances, is measurably relaxed with respect to its platform and approaches. With respect of these, it is to be held to that reasonable degree of care for the safety and protection of its patrons, having regard to the nature of its business, as is demanded of individuals upon whose premises others come by invitation or inducement for the transaction of business. ...
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Pennsylvania Co. v. Marion
... ... To authorize a recovery for an injury so received in any case, the negligence of the carrier ought not to be left to inference, upon an equivocal statement of facts. While it is the duty of a railroad company to keep its platform and approaches safe and convenient for the ingress and egress of passengers to and from its cars, the rigor of the rule which requires it, out of consideration of public policy, to exercise the highest possible diligence for the benefit of the passenger while in the actual ... ...