120 Ind. 549 | Ind. | 1889
The appellee entered a car at the rear
The court instructed the jury that unless the plaintiff proved that he was not guilty of contributory negligence there could be no recovery, but there were no instructions defining contributory negligence, for all the instructions upon this subject were expressed in general terms. One of the instructions given by the court reads thus : “ Even if the jury find from the evidence that the plaintiff had been warned against standing on the platform, and had been directed to go inside, and had disobeyed the instruction, still, if the jury also believe from the evidence that the conductor of the train, at the moment of giving the signal to start, actually saw the plaintiff on the rear platform of the caboose in the act of entering, or attempting to enter the caboose, and knew that he was in a dangerous position, and without giving him a reasonable time to enter, and that by a sudden jerk in starting the cars the plaintiff was thrown to the ground and injured, then the jury should find for the plaintiff.” This instruction can not be rescued from condemnation.
Leaving out of consideration minor matters of objection, and placing our decision upon broad grounds, we adjudge
A passenger is justified, as a general rule, in obeying the direction of the employees of the carrier, and if he receives injury in obeying them, the carrier is liable, even if it appears that if he had not obeyed he would have escaped injury. Cincinnati, etc., R. R. Co. v. Carper, 112 Ind. 26, 29; Louisville, etc., R. R. Co. v. Kelly, 92 Ind. 371 (47 Am. Rep. 149); Terre Haute, etc., R. R. Co. v. Buck, 96 Ind. 346; Lake Erie, etc., R. W. Co. v. Fix, 88 Ind. 381; Pennsylvania Co. v. Hoagland, 78 Ind. 203; Pool v. Chicago, etc., R. W. Co., 53 Wis. 657; Hanson v. Mansfield R. W., etc., Co., 38 La. Ann. 111 (58 Am. Rep. 162); Filer v. New York, etc., R. R. Co., 59 N. Y. 351; St. Louis, etc., R. R. Co. v. Cantrell, 37 Ark. 519 (40 Am. Rep. 105); Fowler v. Baltimore, etc., R. R. Co., 18 West Va. 579; Hickey v. Boston, etc., R. R. Co., 14 Allen, 429; Railroad Co. v. Aspell, 23 Pa. St. 147 (62 Am. Dec. 323); Indianapolis, etc., R. R. Co. v. Horst, 93 U. S. 291; Lake Shore, etc., R. R. Co. v. Brown, 123 Ill. 162 (5 Am. St. Rep. 510). If the passenger may safely obey such directions, it must be for the reason that it is his duty to do so, and it
Not oiily did the plaintiff, upon the theory on which the instruction is constructed, disobey a direction given him, but he remained in a place of danger where he ought not to have remained even if he had not been warned and directed to leave it. There are very many decisions which affirm that one who remains on the platform of a train about to move or which-is in motion, although it is a regular passenger train, is, in the absence of explanatory circumstances, guilty of such negligence as will bar a recovery. Secor v. Toledo, etc., R. R. Co., 10 Fed. Rep. 15; Blodgett v. Bartlett, 50 Ga. 553; Camden, etc., R. R. Co. v. Hosey, 99 Pa. St. 492 : Hickey v. Boston, etc., R. R. Go., 14 Allen, 429 ; Willis v. Long Island, etc., R. R. Co., 34 N. Y. 670; Smotherman v. St. Louis, etc., R. W. Co., 29 Mo. App. 265. But we do not decide whether these decisions declare the law correctly or not; it is sufficient for our purpose, and for this case, to-affirm that a passenger who remains on the platform of a car at the rear end of a long train of freight cars, after-warning to leave it, does voluntarily occupy a place of danger. We confine our decision to the case of one riding on a. freight train, since that is all the case presented by the record requires. There is, it is our duty to say, a difference-between freight trains and regular passenger trains. Passengers assume the risks incident to the means of transportation they adopt, and one who takes passage on a freight train, al
Judgment reversed.