29 Ind. App. 216 | Ind. Ct. App. | 1902
This was an action for damages growing out of tbe death of tbe appellant’s infant son by tbe alleged wrongful act of appellee.
Tbe material averments of tbe complaint pertinent to tbe question herein involved are as follows: That appellee was, on tbe 30th day of September, 1899, a carrier of passengers for hire, and run and operated tbe Lake Erie and Western Railroad. That on said day tbe appellee, in consideration of a railroad ticket having been purchased from it by tbe appellant, and tbe raikoad fare in tbe sum of-dollars having been first paid by tbe appellant for himself, bis wife, daughter, and said infant son, undertook safely to transport and carry tbe appellant’s said son as a passenger, in company with appellant and bis family, upon one of its regular passenger trains over and upon its railroad, westward bound, on bis way home through tbe State of Indiana, and tbe counties of Tipton and Clinton to tbe city of Erankfort, Indiana; and that tbe appellant’s said son took passage'upon and was riding as a passenger in one of tbe appellee’s regular passenger cars, forming and composing a part of one of appellee’s regular passenger trains, on bis way westward to tbe city of Erankfort, Indiana.
That at a point on said railroad about one and one-half miles west of tbe city of Tipton, Indiana, tbe appellee, prior to and on said day, owned, bad, and operated a number of switch tracks connected with tbe main line of said railroad at a point and extending and diverging from said point to tbe northeast; that prior to and on said date tbe appellee bad carelessly and negligently placed, and caused
The remaining allegations of the complaint are only as to the relationship existing between the appellant and the person killed, and averments as to the damage sustained. The trial court sustained appellee’s demurrer to the complaint, and the correctness of this ruling is the only question presented by this appeal.
The trial court properly sustained appellee’s demurrer to the complaint. To actions of this character contributory negligence is made a defense by statute in this State. Acts 1899, p. 58. It is settled law, and applicable to the facts averred in appellant’s complaint, that a railroad company, acting as a carrier of passengers for hire, must exercise the highest degree of' care in all things pertaining to the conduct and management of its trains, with a view to the safety of its passengers. The railway company will be held liable for any injury to a passenger resulting from its negligence or carelessness, unless such passenger be guilty of contributory negligence. Louisville, etc., R. Co. v. Snyder, 117 Ind. 435, 3 L. R. A. 434, 10 Am. St. 60; Hammond, etc., R. Co. v. Spyzchalski, 11 Ind. App. 7; Pennsylvania Co. v. Marion, 123 Ind. 415, 7 L. R. A. 687, 18 Am. St. 330; Louisville, etc., R. Co. v. Lucas, 119 Ind. 583, 6 L. R. A. 193; Prothero v. Citizens St. R. Co., 134 Ind. 431.
It seems to have been universally held by the courts in this country that if a passenger on a railway train protrude any part of his body through a window of the car, it is negligence per se. The case of Indianapolis, etc., R. Co. v. Rutherford, 29 Ind. 82, 92 Am. Dec. 336, early established this doctrine in Indiana. It was there said: “Nothing is better settled than that in such a case, if the plaintiff’s negligence has directly contributed to the injury, he can not recover. A passenger is as much bound to use reasonable care to avoid injury as the carrier is to use the greatest degree of skill and care to save the passenger from harm. Nor does the duty of the carrier extend to the imprisonment of the passenger so as to prevent the latter, by his recklessness or folly, from voluntarily exposing himself to needless peril. Though a passenger, he is nevertheless a free man. Pailway coaches are provided with windows to promote the health of passengers by affording light and ventilation, and that the tedium of a journey may be relieved in some degree, and its pleasures enhanced, by viewing the objects along the route. The place for the passenger is inside, not outside, of the coach, and this is known to everybody who ever saw a railway coach.”
In the case of Pittsburgh, etc., R. Co. v. McClurg, 56 Pa. St. 294, where the person injured was riding with his arm protruding from the car window and came in contact with a car standing on an adjoining side-track, Thompson, C. J.,
In the case of Dun v. Seaboard, etc., R. Co., 78 Va. 645, 49 Am. Rep. 388, a passenger was riding with his arm out of the window about two inches, when it came in contact with some cord-wood piled beside the track. There the court said: “It seems to be the better rule, both upon authority and upon reason, that the passenger, being endowed with intelligence which enables him to foresee and to avoid danger, the exercise of at least ordinary prudence is required on his part to escape it; and if, by his failure to exercise these faculties for his own preservation, a misfortune befall him, though the carrier may have been in fault, it will be attributed to his own carelessness and inattention, and the responsibility will not be thrown on the carrier.”
The showing in the complaint that decedent was only ten years of age is not of itself sufficient to prevent the application of the rule of contributory negligence. Thfe complaint contains no allegation of incapacity other than age. A great many authorities on this proposition are collected and reviewed in the case of Wolfe v. Peirce, 24 Ind. App. 680.
If we concede that the complaint charges negligence on the part of appellee, it is plain that it also states a complete defense to the action which would arise therefrom, and does not state facts which would avoid such defense.
We find.no error. Judgment affirmed.