1 Indian Terr. 10 | Ct. App. Ind. Terr. | 1896
On the 14bh day of September, 1893, the appellee instituted a suit against the appellant, in
Appellant submits an assignment of 35 errors in the case. It is not necessary to consider all the assignments of
The first assignment of error is as follows : ‘ ‘ That said defendant was taken by surprise in the trial of said cause, which ordinary prudence could not have guarded against, in this : that said plaintiff was permitted to introduce evidence, over the objection of defendant, tending to show that the injury received by plaintiff, as alleged in her complaint, caused the bursting of the right eyeball of plaintiff, and occasioned blindness and pain, from which plaintiff suffered, not only in the right eye of plaintiff, but also in the left eye ; and, in support hereof, defendant attaches hereto affidavits, which it makes a part hereof. ” Assignments of error numbered 15, 16, 17,19, 20, 21, 22, 23, and 24 are similar to the first assignment which is quoted, and which alleges error in permitting, over the objection of defendant, testimony tending to show injury to the eyes of the appellee. The allegation in the complaint which describes the injury of the appellee is as follows: “The plaintiff was thrown violently on the platform, on her head and shoulder, cutting her head, to the skull, about an inch in length, over her right eye, bruising and injuring her right arm and shoulder, and bruising and injuring her right leg. ” And, further, that “ plaintiff sustained injuries to her .body as aforesaid, and has suffered great bodily pain, to her great damage in the sum of ten thousand dollars, and has been permanently injured in her body, to her great damage, in the sum of ten thousand dollars,” etc. It appears from an examination of the complaint that it nowhere alleges any injury to either of the eyes of the appellee. It merely states that her head was cut, to the skull, about an inch in length, over her right eye. The words “over her right eye” are used in the complaint as merely descriptive of the location of the cut upon the head, and the bruising which is alleged, such as to her right arm and shoulder and to her right leg, and
Appellant assigns as error the giving of'the following instruction to the jury by the court below: “The plaintiff will be entitled to recover in this case if all the facts and circumstances which are in evidence before the jury show that she was injured by the negligence of the defendant, and that she was free from negligence herself. So that if you should determine from the testimony that the plaintiff, Mrs. Warlick, was injured at the time and place mentioned in her complaint, and in the manner suggested therein, and that ■ such injury was the result of, and caused by, the negligence
Appellant assigns as further error the giving by the court of the following instruction : “The railway company •is, by the law, charged with a higher degree of care and diligence in dealing with passengers than is exacted of private individuals under similar conditions. ” Appellant contends that this instruction is clearly erroneous, in that it charges a railway corporation with a> higher degree of care than is exacted of private individuals. In other words, when a railroad corporation operates a railroad it is charged with a higher degree of care and diligence in dealing with passengers than the law would exact if the railway was owned and operated by private individuals. The appellee contends that this instruction states the law correctly, and cites the case of Shoemaker vs. Kingsbury, 12 Wall. 369, in which it is held by the supreme court “that public carriers or railroad corporations, in carrying passengers, are held to ‘ the utmost diligence of very cautious persons, ’ or, ‘ the greatest possible care and diligence, ’ or, ‘ the most perfect care of cautious and prudent persons. ’ ” Appellee also cites Hutch. Carr. § 501, in which it is stated that the duty of the carrier is to provide for the safety of his passengers, “as far as human care and foresight will go. ” A careful examination of these authorities will show that the error assigned as to the instruction in question does not bring it within the rule laid down in Shoemaker vs. Kingsbury, or in Hutchinson on Carriers, which is to the effect that the railroad company is charged by law with ‘ ‘ utmost diligence of very cautious persons,” or, “the most perfect care of cautious and prudent persons, ’ ’ or, with diligence ‘ ‘ as far as human care and foresight will go. ” The instruction which is alleged to be erroneous states that the law charged the railroad with a higher degree of care and diligence than is exacted of private individuals under similar conditions; The word “ higher, ” which is used in the instructions, was calculated to mislead the jury, in this : that the railroad company was
The facts in this case do not show that the railway was guilty of any negligence in the construction of the depot platform at Pauls Valley. The railroad company is not required by law to construct a depot platform of sufficient length to furnish suitable means to enable passengers to get off the train at' both ends of every passenger car on the train. If, at ^the time the train stopped at Pauls Valley, there was at one end of the passenger car, in which the appellee was a passenger, a suitable platform, upon which she could have alighted in safety, it was her duty to ascertain beforehand at what end of the car she might ■ get off. The fact that she went to the end of the car which had not reached the depot platform, and there, having discovered her mistake, returned to the car for the purpose of getting off at the other end, was a mistake on her part, for which the railroad company could hot be held responsible; and the further fact that no injury whatever resulted to her, proximately or even remotely, by reason of her approaching the end of the car which had not reached the platform, and that she, acting as a prudent person would do under the circumstances, did not attempt to alight at that end of the car, but, on discovering her mistake, returned to the end of