The Pittsburgh, Cincinnati, Chicago and St. Louis Railway Company v. Klitch

• Court: Indiana Appellate Court
• Writing for the Court: DAVIS, C. J.
• Citation: The Pittsburgh, Cincinnati, Chicago and St. Louis Railway Company v. Klitch, 37 N.E. 560, 11 Ind.App. 290 (Ind. App. 1894)
• Decision Date: 18 May 1894
• Docket Number: 1,067
• Parties: THE PITTSBURGH, CINCINNATI, CHICAGO AND ST. LOUIS RAILWAY COMPANY v. KLITCH

37 N.E. 560

11 Ind.App. 290

THE PITTSBURGH, CINCINNATI, CHICAGO AND ST. LOUIS RAILWAY COMPANY v. KLITCH

1,067

Court of Appeals of Indiana

May 18, 1894

Petition for a rehearing overruled Dec. 11, 1894.

From the Scott Circuit Court.

Judgment affirmed.

S Stansifer, for appellant.

N Munden, for appellee.

DAVIS, C. J. Ross, J., absent.

OPINION

DAVIS, C. J.

Appellee was a passenger on appellant's train from Seymour to Scottsburgh, Austin being an intermediate station about five miles from Scottsburgh. The complaint charges that she purchased a ticket to Scottsburgh, which she delivered to the conductor, and when the train, after dark, stopped at Austin, the "conductor negligently and carelessly informed plaintiff that said station was Scottsburgh, and negligently and carelessly assisted her from said train" at Austin, etc.

There was testimony tending to prove that after she entered the train the conductor took up her ticket to Scottsburgh and that the train stopped at Austin, which was announced as Scottsburgh, and starting, stopped again, when appellee, on the information by the conductor that the place was Scottsburgh, left it with two children, one her own, a girl three years old, and the other a boy about eight years old, in her charge. The undisputed testimony is that it was after dark and cold; that appellee inquired of a lady, a stranger to her, for the residence of the friend in Scottsburgh she was on the way with the children to visit, when she was informed that she was at Austin instead of Scottsburgh; that, being a stranger and unacquainted in Austin, the lady showed her to a hotel where, after some delay and trouble, a buggy and driver were procured, and they were driven a distance of five miles to Scottsburgh, her destination, where they arrived at 10 o'clock that night. The cold and exposure of the ride made her sick, she had a very severe cold the rest of the winter, and lost time from her work. The appellee recovered $ 250.

The only error assigned is that the court erred in overruling appellant's motion for a new trial.

Appellant, at the proper time, asked the following instructions:

"8. If you find for the plaintiff, then, in assessing the damages, I instruct you that you can not allow anything for plaintiff's alleged trip from Austin to Scottsburgh."

"9. If you find for the plaintiff, then, in assessing the damages, I instruct you that you can not allow anything for plaintiff's alleged suffering and sickness caused by her alleged trip from Austin to Scottsburgh."

The instructions were refused and excepted to.

The court's sixth instruction is as follows:

"If you find for the plaintiff, it will be necessary for you to assess her damages. While the jury are not authorized by law in this case to give exemplary damages, yet if the jury find for the plaintiff, full compensatory damages should be awarded, and in arriving at compensatory damages, the jury are not necessarily restricted to the naked pecuniary loss, if any. In estimating the plaintiff's damages, in case you find for her, if you find that she acted as a person of ordinary prudence under like circumstances in taking a conveyance to Scottsburgh from Austin, considering the weather and distance, you may take into consideration her loss of time, if any, personal inconveniences in traveling by conveyance to Scottsburgh from Austin, suffering, if any, by her from cold in making this trip, her exposure and resulting sickness from making this trip, if any, suffering and distress in mind and body, all such as are the direct and proximate consequences of the wrongful acts complained of. The plaintiff can not, however, recover for any injury, inconvenience, loss or suffering which is not the direct and proximate consequence of the misconduct of defendant's servants complained of."

The giving of this instruction was expected to.

The motion for a new trial assigned for causes the refusal to give appellant's eighth and ninth instructions, and the giving of the court's sixth instruction, as also verdict not sustained by the evidence, contrary to law. and excessive damages.

The argument of the learned counsel for appellant is based on the proposition that under the circumstances of this case the questions of proximate damages and contributory negligence were for the court, and not for the jury. In other words, the entire case, as it is presented to us, turns upon the question as to whether the court, on the facts and circumstances in this case, should have instructed the jury that they could not allow appellee anything on account of her trip from Austin to Scottsburgh, or for her suffering and sickness caused by that trip.

It may be conceded that when, in such cases, the evidence as to contributory negligence and proximate cause is of such a character that but one reasonable inference can be drawn therefrom, then the question involved is one for the court. Rush v. Coal Bluff Mining Co., 131 Ind. 135, 30 N.E. 904; Woolery, Admr., v. Louisville, etc., R. W. Co., 107 Ind. 381, 8 N.E. 226.

The great difficulty in this class of cases is in determining what is and what is not contributory negligence, and what constitutes a proximate consequence in contemplation of law.

In the case in hand do the facts and circumstances bring it within the above rule.

There is some conflict in the authorities bearing on the questions as to whether the act of appellee, in driving to Scottsburgh on that night, "was an act of ordinary care on her part," and as to whether such act was the proximate result of appellant's negligence.

The case of Texas, etc., R. R. Co. v. Cole, 27 Am. and Eng. R. R. Cas. 144, relied on by counsel for appellant, is in all substantial respects the same as the one under consideration with the exception that in the Texas...