26 Ind. App. 190 | Ind. Ct. App. | 1901
The only question presented by the record in this case is as to the sufficiency of the complaint. The complaint in so far as it is necessary to present the questions discussed is as follows: “Plaintiff avers that on the 24th day of May, 1898, desiring to go from said city of Muncie, Delaware county, Indiana, to the city of Decatur, in Adams county, Indiana, he did at about 7 o’clock a. m. on said day
It seems to be the rule, with but few exceptions, in the courts of this country and England, that a railro’ad carrier is bound to exercise a high degree of care to protect its passengers from injury by third persons, and that while the carrier must exercise a high degree of care, it is not liable if such care is used, there being no liability unless there is negligence. Elliott on Railroads, §1591; Felton v. Chicago, etc., R. Co. (Iowa,) 29 N. W. 618; Pitts
Admitting, as we must in considering the sufficiency of the complaint, that all the material allegations therein are true, does it state facts from which the court must as a matter of law conclude that the appellant was guilty of negligence, and that the appellee was free from contributory fault. The case here presented is very different from a case where the passenger is wrongfully ejected or assaulted by a servant of the carrier; in such a case the act of the servant or agent is the act of the principal. But in the cases of the class to which the case under consideration belongs, the complaint must, in the absence of a direct averment of negligence, allege facts which in law amount to negligence. As to the first assault committed upon appellee it is not shown by the complaint that the conductor or brakeman in charge of the train was present when the appellee was ejected from the train, neither is it shown that they saw appellee ejected, or saw him try to board the train at Montpelier while it was standing at the station. Nor does the complaint show that appellant or its servants had reasonable grounds to apprehend that the appellee was in danger, nor that if they had known of the assault they could, in the exercise of reasonable care, have prevented it; nor does it show that appellee at any time called upon the servants of appellant in charge of the train for help or protection, and that the help and protection to which he was entitled was refused. Thus it was held in Royston v. Illinois, etc., R. Co., 67 Miss. 376, 7 South. 320, that if a passenger is violently assaulted by a fellow passenger while the conductor is absent attending
The second and last assault committed upon appellee by his fellow passengers was when he attempted to board the train after it had pulled down the track and was waiting for another train to pass. This assault, the complaint avers, was in full view of the employes in charge of the train, and that said employes made no effort to protect him or to prevent his fellow passengers from assaulting him and preventing him from getting on said train. Whether said employes were near enough to render him any assistance, or whether they negligently refused to come to aid him, we are left to presume from the mere statement that at the time the assault was committed he was in full view of* said employes. Under the authorities cited, we are inclined to hold that the averments of the complaint as to the second and last assault committed upon appellee are sufficient to charge appellant with actionable negligence. But the complaint is open to another and fatal objection. The theory of the complaint is to recover damages for the tort, and the contract of carriage is set forth merely as leading up to the commission of the tort and for the purpose of showing appellant’s liability therefor. The assault and battery was the cause and not the effect of the failure to transport appellee. There is no averment in the complaint that appellee was free from fault. The general averment that appellee was free from fault would have been sufficient unless it affirmatively appeared from the facts pleaded that he negligently contributed to his injury. But the complaint, as stated, does not contain such general averment. Such averment being absent, its sufficiency in this respect must be determined from the specific facts stated in the complaint. The facts so stated must be such as will affirmatively show that the appellee was free from fault. It is averred in the complaint that appellee, while a passenger on the train, was sitting quietly in his
For error in overruling the demurrer to the complaint the judgment is reversed.