158 Ind. 669 | Ind. | 1902
This action was brought by appellee against appellant to recover damages for personal injuries alleged to have been received by appellee while riding upon a freight train on appellant’s railroad. A trial resulted in a verdict in favor of appellee, and, over a motion for a new trial, judgment was rendered thereon against appellant. The assignment of errors calls in question the action of the court in overruling appellant’s demurrer to the complaint, in sustaining appellee’s demurrer to the second and third paragraphs of appellant’s answer, and in overruling appellant’s motion for a new trial.
It is insisted by appellant that the complaint is not sufficient, because it is not alleged that said freight train was one which, under the rules and regulations of the company, carried passengers between the stations named on appellee’s ticket. Chicago, etc., R. Co. v. Bills, 104 Ind. 13, 17; White v. Evansville, etc., R. Co., 133 Ind. 480, 486, 487; Indianapolis, etc., R. Co. v. Kennedy, 77 Ind. 507, 510; Pittsburgh, etc., R. Co. v. Lightcap, 7 Ind. App. 249; Chicago, etc., R. Co. v. Field, 7 Ind. App. 172, 52 Am. St. 444.
Appellee, however, contends that it ,is not material whether or not he was in fact a passenger, or whether said freight train carried passengers, for the reason that the complaint charges an injury for which appellant was liable even if said train, under the rules of the company, did not carry passengers. Citing Chicago, etc., R. Co. v. Bills, supra; Citizens St. R. Co. v. Willoeby, 134 Ind. 563, 565, 566; Lake Erie, etc., R. Co. v. Matthews, 13 Ind. App. 355.
It is true that it is not alleged that the conductor touched appellee, but it is clear that appellee was compelled, by the order and demonstrations of the conductor, to attempt to get off the train while it was moving, when it was so dark appellee could not see, the conductor refusing to stop the train, and that appellee was injured thereby. Appellee did not
If a person not entitled to' be carried as a passenger is injured by being ejected while the car is in motion, or in a dangerous and improper place, where he is exposed to unnecessary peril, the railroad company is liable for such injury. 4 Elliott on Railroads, 2575.
The second and third paragraphs of answer allege facts showing that said freight train did not carry passengers, except on a permit issued by the superintendent of said railroad. As the complaint charges an injury for which appellant was liable, even if said train did not carry passengers, it is clear that the facts alleged in said paragraphs were not a defense to such action.
A number of causes assigned for a new trial call in question rulings of the court in the admission and exclusion of evidence. Appellant has not called our attention to the page and line of the record showing the rulings of the court in admitting and excluding such evidence.
Clause five of rule twenty-two of this court requires that a party asserting that a ruling of the trial court is erroneous must refer to the page and line of the transcript where the same may be found. It has been uniformly held that this court will not search the record for errors, and unless such rule is complied with they will not be considered. Board, etc., v. Gibson, ante, 471; Memphis, etc., Co. v. Pikey, 142 Ind. 304, 317; Harlan v. State, 134 Ind. 339, 342; Louisville, etc., R. Co. v. Donnegan, 111 Ind. 179, 190; Brunner v. Brennan, 49 Ind. 98, 101; State v. Winstandley, 151 Ind. 495, 501, 502, and authorities cited.
It is insisted that the verdict is contrary to law, and not sustained by sufficient evidence. These causes for a new
Judgment affirmed.