142 Ind. 475 | Ind. | 1895
Lead Opinion
Appellee brought this action against appellants, the Louisville, New Albany and Chicago E. W. Co., commonly called the “Monon,” and the Toledo, St. Louis and Kansas City E. E. Co., commonly called the “Clover Leaf,” to recover damages for injuries alleged to have been received by her at a depot used and maintained by appellants.
Appellants each filed separate demurrers to the complaint, for the reason that.the same did not state facts sufficient to constitute a cause of action, which demurrers were overruled by the court, and exceptions were reserved.
The “Monon” filed an answer in two paragraphs, to the second of which appellee’s demurrer was sustained, and exception taken. The “Clover Leaf” filed an answer in one paragraph. The cause was tried by a jury, and the special verdict returned; thereupon each appel
Appellants then filed their separate motions for a new trial, ■ which were overruled and exceptions reserved.
Appellants separately assign errors in this court; the reasons urged for a reversal are:
First. — That the court erred in overruling the demurrer of each appellant to the complaint.
Second. — That the court erred in overruling the separate motion of each appellant for a new trial.
Third. — That the court erred in overruling the separate motion of each appellant for a judgment in its favor on the special verdict.
The complaint was sufficient to withstand the demurrers of appellants. The objections urged thereto, so far as it charges negligence, could be reached by a motion to make more specific, but not by demurrer. Neither were the specific statements as to the conduct of appellee sufficient to overthrow the general allegation that appellee was injured without any fault or negligence on her part. Pennsylvania Co. v. O’Shaughnessy, Admr., 122 Ind. 588, and cases cited; City of Elkhart v. Witman, 122 Ind. 538, and cases cited; Town of Rushville v. Adams, 107 Ind. 475,
It is unnecessary to set forth the complaint or the substance of the same, as substantially the same questions are presented upon the special verdict.
The ■ special verdict, so far as necessary to determine the question presented, is :
That the “Monon” railroad runs north and south through the town of Linden, and the ‘ ‘ Clover Leaf ” runs.
It is settled law, in this State, that it is the duty of a railroad company to keep in safe condition all parts of its platforms, with the approaches thereto, to which the
Appellee, upon her arrival at the station, became entitled to all the rights, privileges and protection of a passenger from the “Monon” company.
It is urged by appellants that the court erred in rendering judgment in favor of appellee on the special verdict.
The special verdict states that the platform was not lighted, and it is clearly shown that the negligence of the “Monon” company, in leaving the platform described in the verdict without lights, was guilty of negligence, and that the same was the proximate cause of the injury. Louisville, etc., R. W. Co. v. Lucas, supra.
Appellee clearly had the right to retire from the depot
This is not a case where the injured party was attempting to step off the platform, not knowing the depth, as in Forsyth v. Boston, etc., R. R. Co., 103 Mass. 510, cited by the appellants, but is a case where the injured party was seeking to go out by the way the 1 ‘ Monon ” company was required to make safe to its passengers, at night, by lighting the same. This it negligently failed to do.
Counsel for appellants upon this point say: “But even though appellants were clearly negligent in not having the front part of the platform lighted; that is, that part of the platform which lies between the front of the depot or door of the depot, and the train or track upon which trains pass, such negligence could not have contributed to the accident, because, even if the platform had been so lighted, the light would not have extended to the point of the accident. ”' Lighting the platform between the depot and track alone would not have been sufficient under the law, the platform extending to the highway must also have been lighted to comply with the rule, and if it had been so lighted, no matter where the light was placed, appellee, as the jury find, would not have gone to the place of the accident, whether the light extended there or not, but would have walked out over the
It is earnestly insisted by appellants that there are no-facts found from which the court can conclude that appellee was exercising due care; that the finding on this subject consists wholly of conclusions of law. The statements in the special verdict concerning the care-exercised by appellee are substantially the same as those in the special verdict in the case of Louisville, etc., R. W. Co. v. Lucas, supra, which was sustained by this, court. Terre Haute, etc., R. R. Co. v. Brunker, 128 Ind. 542 (547-548).
Judgment on the special verdict was properly rendered against the “Monon” company.
It clearly appears from the evidence, that appellants used that part of the platform where appellee stepped off for loading and unloading vehicles, hauling baggage and freight to and from the depot. Appellants were not required to erect barriers of any kind at that point, and were not negligent for not so doing. The jury in the special verdict find otherwise; and such finding is not supported by the evidence. If, however, the finding of the jury concerning the necessity of barriers were eliminated from the verdict the judgment thereon would necessarily be the same against the “Monon” company • such finding therefore is harmless. The negligence consisted in not lighting the platform and approaches, and not in failing to erect barriers.
It was proper to state in the special verdict that there were no barriers, and also the elevation of the platform above the ground as showing the danger in the night time when not lighted and therefore the greater necessity for lighting the same.
In other respects the evidence supports the finding,
A different question, however, is presented by the * ‘Clover Leaf ” company. The appellee did not go to the depot on any business with that company whatever ; that company owed her no such duty as the law imposes upon a common carrier to its passengers. The “Clover Leaf” company, at that time, had no trains running at night carrying passengers over its road either to or from that station, and therefore was under no •duty to light the platform or approaches thereto. Before this appellant can be held liable to appellee, it must be shown that, at the time and place mentioned, it was ■under some legal duty to appellee, which it failed to ■discharge. Evansville and Terre Haute R. R. Co. v. Griffin, 100 Ind. 221; Pennsylvania Co. v. Shaughnessy, supra; Indiana, etc., R. R. Co. v. Barnhart, 115 Ind. 399 (408); 2 Wood Railroads, sections 310 and 310a, supra ; Davis v. Central Cong. Society, 129. Mass. 367; 16 Am. and Eng. Ency. of Law, pages 414, 415.
The case of Lucas v. Pennsylvania Co., 120 Ind. 205 (cited by the “Monon” company), is not an authority Aere; the injured party in that case had alighted from ■the train of the “Monon,” and was making her way •over a platform to the proper place to take passage on ■the train of the Pennsylvania Co.; she was entitled to ■protection, as a passenger, from both companies. In -that case the platform was old, decayed and greatly dilapidated and out of repair, and there was a hole in "the same caused by the breakage of planks therein, of-the size and space of three to five feet either way, which ■was open and ‘ ‘ wholly unguardedsuch a place was a trap. In this case the platform was in good repair .and was safe by day, and if properly lighted was safe in the night time. In that case both companies owed the
The court therefore erred in overruling the ‘ ‘ Clover Leaf’s” motion for a judgment in its favor on the special verdict.
Judgment affirmed as to the Louisville, New Albany and Chicago Railway Company, and reversed as to the Toledo, St. Louis and Kansas City Railroad Company, with instructions to sustain its motion for a judgment in its favor on the special verdict.
Rehearing
On Petition for Rehearing.
An earnest and able petition for rehearing has been filed by the ‘ ‘ Monon ” company.
It is claimed “that this court erred in reversing the judgment as to the ‘Clover Leaf’ company and affirming it as to the ‘Monon’ company because a judgment at law cannot be reversed as to one joint defendant and affirmed as to the other. ”
The authorities cited by appellant in support of the rule asserted can have no force in this State, for the reason that the question is regulated by our code of civil procedure. Section 570, R. S. 1881; section 579, R. S. 1894, provides: “Though all the defendants have been summoned, the judgment may'be rendered against any of them, severally, when the plaintiff would be entitled to judgment against such defendants if the action had been against them severally.”
Section 569, R. S. 1881; section 578, R. S. 1894, provides that “In a suit against several defendants, the court may, in its decision, render judgment against one ■or more of them, leaving the action to proceed against the others whenever a several judgment is proper.”
Under these sections it has been held, by this court that the trial court possessed chancery powers in adapting its judgment to the rights of the parties. Draper v. Vanhorn, 12 Ind. 352; Douglass v. Howland, 11 Ind. 554; Cutchen v. Coleman, 13 Ind. 568; Home Ins. Co. v. Gilman, Exr., 12 Ind. 7 (9).
That if a plaintiff sue two or more jointly and only prove á liability as to one, he is entitled to a judgment against that one. Stafford v. Nutt, 51 Ind. 535, and cases cited on page 538; Louisville, etc., R. W. Co. v. Duvall, 40 Ind. 246; Moyer v. Brand, 102 Ind. 301 (306); Thornton Ind. Prac. Code, annotated, sections 568, 569, 570, and notes.
In Lower v. Franks, 115 Ind. 334, on p. 337, this court, in speaking of the foregoing sections of the code of civil procedure, said.: “In the case of Hubble v. Wolf, 15 Ind. 204, following the case of Blodgett v. Morris, 14 N. Y. 482, it was held in terms that this provision of the code applies to all actions indiscriminately, whether founded upon contract, or upon tort; .that it is immaterial whether the complaint alleges a joint or a joint and several liability; that the right of recovery is, in this respect, to be regulated by the proof, and not
It has been uniformly held by this court, since the code of civil procedure took effect in 1853, that a case may be reversed as to a part of the appellants, and affirmed as to others, and such has been the uniform practice. Louisville, etc., R. W. Co. v. Duvall, supra; Steeple v. Downing, 60 Ind. 478 (503-504); Dodge v. Dunham, 41 Ind. 186 ; State, ex rel., v. Mills, 82 Ind. 126 ; Lower v. Franks, supra; Citizens’ Street R. W. Co. v. Robbins, Admr., 128 Ind. 449; Haxton v. McClaren, 132 Ind. 235; English v. Aldrich, 132 Ind. 500; Spaulding v. Spaulding, 133 Ind. 122;
This cause was not reversed upon the evidence as to the Clover Leaf company, as stated in the petition for a rehearing, hut upon the special verdict, for the reason that the facts stated in the special verdict entitle the Clover Leaf company to a judgment. It is insisted that the cause should he reversed as to the Monon company, for the further reason £ ‘ that an invisible and inseparable part of the damages assessed by the jury, was essentially assessed against.the Clover Leaf company.” No part of the damages assessed by the jury was assessed against either company, but the amount fixed was such as, in the judgment of the jury, would compensate appellee for her injuries. It was left to the court to say, as a matter of law, whether judgment should be rendered for the same against both, or only one of the appellants.
The other questions presented in the petition for a rehearing were fully considered and determined in the original opinion.
The petition is, therefore, denied.