17 Ind. App. 657 | Ind. Ct. App. | 1897
The appellee sued the appellant to recover damages for personal injuries. The complaint, omitting the introductory matter, about which there is no question, alleged, in substance, that on the 29th day of September, 1894, the appellee purchased of the appellant’s passenger ticket agent at Connersville, a round trip ticket from that place to Lockland, Ohio, and in consideration of the price paid, etc., the appellant agreed and was bound, as a common carrier, to carry appellee safely, etc.; that appellee on said day took passage at Connersville on one of appellant’s regular passenger trains, which, by the rules of the appellant and by the schedule prepared by it for the information of the traveling public and its agents, was, on that day, scheduled to stop for receiving passengers on said train, and allowing passengers to alight from it at both of said places; that the conductor, or agent of the appellant, in charge of the train accepted that portion of the ticket for the appellee’s fare from Connersville to Lockland; that the appellant’s agent in charge of the train, when it.was within one-half mile of the town of Lockland, notified appellee that the train was approaching that town, and told her to be in readiness to get off, as the train was late and would not stop long at appellant’s station; that appellee had with her, and in her charge, her infant child, which, on account of its tender years, was not able to walk or take care of itself; that as the train
A demurrer to the complaint for want of sufficient facts was overruled. The appellant answered by general denial. Upon trial of the cause by jury, a general verdict for the appellee for $2,500.00 was returned.
The appellant’s motion for a new trial was overruled, and judgment was rendered on the verdict.
It is contended on behalf of the appellant that the complaint shows that the appellee’s negligence contributed to her injury. It is urged that for a woman to go upon the platform or down on the steps with a child two years old in her arms, when the train is in motion, is negligence. The complaint alleges that appellee was at the door when the train had reduced its speed until it almost stopped; that she then stepped out on the platform, “at which time the train wholly stopped,” etc. If the complaint shows that the appellee went upon the platform while the train was in motion, it does not show that she descended the steps and attempted to alight while it was in motion. It shows with sufficient certainty that she descended the
The particular allegations of the complaint are not so inconsistent with its general allegations that the appellee was without fault or negligence, as to overcome the effect of those general allegations. The objection made to the complaint in argument does not seem to be well taken.
The sufficiency of the evidence to sustain the verdict is questioned by appellant. The evidence showed that the appellee was accompanied by her father and his daughter-in-law, and appellee’s child, two years and about two months old; that appellee went upon the platform of the car and down to its lowest step with her child upon her left arm; that her sister-in-law and father followed her from the car to the platform thereof, and were still upon the platform when she was injured.
There was a wide difference between the evidence introduced by the appellant and that produced by the appellee, as to the manner in which she received her injury.
The evidence of the appellant tended to prove that the train stopped at the station, in front of the depot,, and remained there from one minute and a half to
The evidence introduced by the appellee tended to prove that she had previous knowledge of the locality; that before reaching the station a trainman announced it in the car and told the passengers to be prepared, and that the train was a little behind time; that when the train whistled for the station she took her child on her left arm and went to the front door, her father and her sister-in-law following; that she opened the door, and went out upon the platform; that the train was slowing up when she opened the door, and it slowed up until she thought it was ready to stop, and she stepped down to the lower step and stood with her child on her left arm and held on to the projecting iron on the side of the car with her right hand, and had her right foot extended ready to make the step off when the train would stop; that it did not stop, but started up with a jerk, which made her lose her balance and threw her, and when she knew she was going she made the jump to save herself from falling, and alighted upon a cement platform on the back of her head and left shoulder, arm and hip; that when she fell she knew that some one, the conductor or. brakeman, hallooed at her, saying, “Don’t jump, lady,” or “Woman, don’t jump there, you will get hurt;” that she was then too far gone, had lost her balance and had started to fall; that when she stepped down, the train was slowed up so that she thought it would stop every minute; that when she started down the steps the train was slowing up so that a person would think it would stop, that it was just barely moving; that at the time of her injury she was a stout, hearty woman, her weight averaging from one hundred and seventy-live to one hundred and eighty pounds; that when she got down on the lower
It was testified by the appellee, that when she stepped down on the step, the train was running in such a manner that it was so slow that anybody would go down to make the step off as soon as it would stop; that “it was so slow that you could just barely see it move, and that is all, and I got down onto the step.”
In Reibel, Admx., v. Cincinnati, etc., R. W. Co., 114 Ind. 476, the general rule was stated to be, that passengers who are injured while attempting to get upon
In Louisville, etc., R. R. Co. v. Crunk, 119 Ind. 542, 553, it was said: “We cannot adhere to the doctrine that the attempt to voluntarily leave a moving train, regardless of the speed and circumstances under which the attempt is made, is negligence per se.”,
In the case last mentioned it was said, also, “The fact that a person voluntarily alights from a moving train is not a conclusive presumption of negligence on his part. The rate of speed the train has acquired, the place, and all the circumstances connected with the alighting, are to be taken into consideration in determining whether or not the person was guilty of negligence on his part in leaving or attempting to leave the train.”
Pennsylvania Co. v. Marion, 123 Ind. 415, 7 L. R. A. 687, 18 Am. St. 330, was an action for damages-for injury suffered by the plaintiff in stepping off a slowly moving train. It was held that the question whether
In Louisville, etc., R. R. Co. v. Bean, 9 Ind. App. 240, the court held that it is not necessarily negligence per se for a passenger to step from a moving train, but it is only where the facts are undisputed, and but one inference can be reasonably drawn therefrom, that the court will adjudge negligence or contributory negligence, as a matter of law.
In Toledo, etc., R. R. Co. v. Wingate, 143 Ind. 125, the complaint showed that when the passenger, a woman, acquainted with the locality, loaded with many bundles, reached the door, the car was moving with a gentle motion; that she went upon the platform of the car, and then finding that the car was still moving and more rapidly, and not seeing any one to assist her, she was stricken with dismay and fright, and seized with fear that she would be carried past the station and away from home, and feeling that she must get off, and yet believing and expecting that the conductor or other trainmen would meet her, take her bundles and-packages and aid her in alighting, as was their duty and custom with female passengers, she proceeded down the steps of the car, etc.; that at or about the time she reached the lower step of the car, the speed of the train was negligently and suddenly quickened, whereby she was thrown upon the depot platform, which was twenty-six inches below
In Cincinnati, etc., R. R. Co. v. McClain (Ind. Sup.), 44 N. E. 306, it was held that a passenger wishing to alight at a certain crossing, the conductor having told him that he could get off there without danger, was guilty of negligence in going upon the lower step of the platform at night, and while the train was running at a speed of 11 or 12 miles an hour.
In Cleveland, etc., R. W. Co. v. Moneyhun, Gdn., 146 Ind. 147, it was held that a passenger, who was a person having capacity to be guilty of contributory negligence, was, as a matter of law, negligent in going upon the lowest step of the car and standing there with his back toward the platform and his head leaning outward, to vomit, while the train was running at the rate of twenty-five miles an hour, the jury finding that it was dangerous for him to do so.' In the case last mentioned, the question as to contributory negligence aro.se under a special verdict, and it was said to be a well settled proposition in this State, that whenever, under the facts disclosed by a special verdict, the question is presented either as to. the negligence of the defendant, or a$ to whether the plaintiff was without fault, and two inferences may be reasonably drawn as to either of said ultimate facts, one in favor and the other against, then the determination of such a fact is within the province of the jurors, and their finding will be accepted by the court as conclusive*; but if the facts found are such that the court can adjudge, as a matter of law, that the injured party was or was not guilty of contributory negligence, then the finding of such ultimate fact, whatever it may be, will be disregarded by the court.
In the case at bar, regarding, as we must, the evi
We need not .again recite those facts, or any of them. Eegarding them all together, and considering them in connection with the authorities, we are of the opinion that the question as to whether the evidence most favorable to the appellee did or did not show her to be free from contributory fault was one for the jury to determine under proper instructions from the court.
The question as to contributory negligence determined by the jury, under the evidence produced by the appellee, was not one of voluntarily alighting from a moving train, but one of going upon the lower step of a slowly moving car, and, the car still slowly moving, standing there and waiting with the intention of alighting when the train should cease to move. The difference between such cases is not an insignificant one.
It is earnestly argued by the appellant that the trial proceeded upon a different theory from that set out in the complaint, which alleged that the train stopped, while the appellee’s evidence upheld the theory that the train did not stop.
It devolves upon us to inquire whether this difference between the evidence and the statement in the complaint constitutes a failure of proof.
In Waldhier v. Hannibal, etc., R. R. Co., 71 Mo. 514, the action being for negligence in having and using insufficient machinery and in running and managing its railroad and cars, it was held that the plaintiff could not recover upon proof that the injury was occasioned by a broken frog.
Where the alleged negligence of the defendant was its failure to blow a whistle, it was held that evidence that the whistle was defective was not admissible. Gulf, etc., R. W. Co. v. Scott (Tex. Civ. App.), 27 S. W. 827.
In Birmingham, etc., R. W. Co. v. Clay, 108 Ala. 233, 19 South. 309, the third count of the complaint alleged that while a train had stopped for receiving and putting off passengers, the plaintiff’s intestate and other passengers seeking to board said train, got upon the platform of one of the cars; that while he was on said platform, and before he had time and opportunity to get inside said car, it was quickly put in motion, and he was thereby thrown from his balance and caused to fall off said platform and under the wheels of the car he was seeking to enter, and he was thereby run over and killed; that his death was caused by the negligence of the defendant in not allowing the train to remain stationary long enough for him to get safely on the same, and in starting thé train too suddenly, so as to throw him off said platform, and in failing to discover his peril, while on the platform, from said car being put in motion; in putting said train in motion while he wás in a place of danger which might have been discovered and averted by proper care and watchfulness on the defendant’s part; and in failing to keep a proper lookout to.see that he had reached a place of safety on the train before it was put in motion.
In Cleveland, etc., R. W. Co. v. Wynant, 100 Ind. 160, the complaint charged that. the plaintiff’s team of horses became frightened at an empty box car, negligently and unlawfully suffered by the defendant to remain upon the public highway, and ran away, etc. There was no evidence that the horses became frightened at the car, but there was evidence that they became frightened at a noise in a car that was on the railroad out in the public highway. It was held that there was a failure of proof.
In Cincinnati, etc., R. R. Co. v. McClain, supra, it was alleged in the complaint that the passenger was informed by the conductor that the train would stop at the crossing of the Belt Railroad, and that he could get off without danger. It appeared by the answers of the jury to interrogatories that the accident did not happen at the crossing, at the point where the train usually stopped, but happened at a point about 1600 feet east of the crossing; that the train did come almost to a stop at the usual stopping place, 250 feet east of the crossing. It was said by the court: “Whether it could be said that the switches, 1600 or' 1800 feet east of the Belt, were ‘at the crossing of the Belt Railroad,’ in such a sense as to make the complaint good for an injury caused at the switches, but which was alleged to have been caused at the crossing where the train usually stopped, at a point 250 feet from the Belt road, may admit of grave doubt. * * *
Reither in the complaint, in the case at bar, nor in the evidence produced by the appellee, was there any matter relating to a defect in the locomotive or train or track or landing place. There was no difference between the complaint and the evidence as to time, place, surroundings, or persons. The complaint and the evidence both showed the cause of the injury to be the failure of the appellant to give the appellee an opportunity to alight in safety and the sudden starting up of the train1 with a jerk while she was upon the lower step of the car, her conduct in being there not being negligent, as a matter of law. Although the circumstances of her taking that position and standing there were described differently in the complaint and the evidence, yet the complaint alleged and the jury found that she was without fault in being there. Whether or not she was negligent in being there when the train started with a sudden jerk, was the important question relating to her conduct, and a slight difference in the two descriptions of the circumstances of her assuming the position could hardly be material.
The proximate cause of the appellee’s injury was not her going down upon the lower step, or her standing there, while the train was moving slowly, nor was it the slow motion of the train while she went down the steps, or while she stood upon the lower step; but the wrongful and sudden jerk, which threw her off her balance and caused her to fall, was the proximate cause. But for this she would not have received the injury, to which, as the complaint showed and the jury
The appellant does not appear to have been misled as to its defense. If the evidence produced by the appellant had been accepted and relied upon by the jury as showing the true state of the case, it would have established as complete a defense to the cause of action shown by the appellee’s evidence as to that shown by the complaint.
While, as we. have heretofore suggested, the conduct of the appellee in that she was not in the very act of alighting voluntarily, but was standing on the step waiting for the train to cease to move, until, being thrown from her balance, she jumped to save herself, might be considered by the jury as affecting the question as to the prudence of her actions, yet the difference between her conduct described in the complaint and that shown by her most favorable evidence would not be such as to make the duty of the appellant toward her essentially different in the one case from what it would be in the other case; and the conduct of the appellant affecting the appellee, as shown by the evidence most favorable to her, was not essentially different from that stated in the complaint. Certainly such variances are not to be commended or encouraged, but, after, some hesitation, we find ourselves unable to regard the evidence most favorable to the appellee as showing a case so essentially different from that stated in the complaint as to constitute a failure to prove the complaint in its general scope and meaning. Counsel have discussed other matters pertaining to the trial. The questions thus presented are of such a character that no useful purpose would be
We find no available error in the record.
Judgment affirmed.
Henley and Wiley, JJ., dissent.