61 Ind. App. 10 | Ind. Ct. App. | 1915
This was an action for personal injuries, which appellee claims to have suffered by reason of the negligence of appellant, growing out of the misconduct of a fellow passenger, while she was being transported on one of appellant’s passenger trains from Jasonville, Indiana, to Linton, Indiana. A jury awarded appellee damages in the sum of ,|750. From a judgment on the verdict, appellant appeals.
The errors assigned are; (1) overruling the demurrer to the amended complaint; (2) the complaint does not state facts sufficient to constitute a cause of action; (3) overruling appellant’s motion to strike out parts of the amended complaint; (4) overruling appellant’s motion for a new trial.
The amended complaint is in one paragraph and in substance states, that on September 30, 1911, appellant' was a railroad corporation operating a railroad between Terre Haute, Indiana, and Seymour, Indiana, and that appellee became a passenger for hire at the station of Jasonville, with her
Appellant’s position that the complaint fails to state a cause of action as against the demurrer for want of facts may be summed up substantially as follows: The carrier’s liability to a passenger for the misconduct of a fellow passenger is contingent, depending upon the carrier having knowledge of the misconduct of the fellow passenger, or where the attending circumstances are such that the injury to the passenger by the fellow passenger could have been reasonably apprehended by the exercise of due care; that the carrier is not responsible for subsequent misbehavior of a passenger when the same is of a different nature and kind and unrelated; that there is no causal relation disclosed by the complaint between the fight in one apartment of the train and the subsequent act which injured appellee in another apartment, namely, the falling of one of the participants in the fight after it had ceased; that the facts pleaded are not such as to disclose that appellant could have reasonably anticipated that the safety of the passenger was threatened and an injury likely to occur, especially in the absence of an averment that the passenger fell upon appellee as a result of his intoxication.
Note. — Reported in 110 N. E. 240. As to-who are passengers to whom the carrier owes a duty, see 61 Am. St. 75. On liability of carrier for injury resulting from negligent or meddlesome act of fellow passenger, see 37 L. R. A. (N. S.) 724. As to the duty of a carrier to protect passengers against intoxicated passenger, see 8 Ann. Cas. 225; Ann. Cas. 1912 C 278. See, also, under (1) 6 Cyc 598, 602, 604; (2) 6 Cyc 602; (3) 6 Cyc 626; (4, 5) 29 Cyc 570; (6) 3 Cyc 348; (7) 38 Cyc 1711; (8) 13 Cyc 234, 247.