52 Ind. 540 | Ind. | 1876
— Action by the appellee against the appellant. It was commenced in Jackson county, and the venue changed to Washington county.
The complaint alleges that on March 20th, 1873, appellant received appellee on one of its passenger trains, to be carried from Brownstown to North Vernon and back again to Brownstown, for one dollar and fifty cents, which sum appellee paid; that while appellee was a passenger, returning to Brownstown, in a passenger ear, and after he had delivered his ticket to the conductor on said train, appellant wilfully failed, neglected and refused to stop said train at Brownstown a sufficient length of time to let him^get off at Brownstown, although requested so to do, but wrongfully, wilfully and unlawfully carried him past said Brownstown to Vincennes, a distance of ninety-six miles from his home and place of destination, against his will, and there permitted him to get off said cars, at a late hour in the night, in a strange place, and among strangers, and, on account of the gross neglect of appellant in the premises, compelled him to
A demurrer to this complaint was filed, which was overruled by the court.
The defendant answered by a general denial and four special paragraphs. The special paragraphs were, on motion of the plaintiff, struck out by the court.
There -was a trial by jury, and a verdict for the plaintiff, on which, after overruling a motion of the defendant for a new trial, there was final judgment.
The appellee has moved to dismiss the appeal for various reasons, and among them for defects in the clerk’s certificate to the transcript. Under a rule of the court, we have granted leave to have the certificate amended, and that objection has been avoided by making the necessary amendment. Other grounds of the motion relate to matters which are not reasons for dismissing the appeal.
Among the errors assigned by the appellant is, that the court erred in overruling the demurrer to the complaint. This alleged error is not argued or urged, and perhaps has no good foundation. The complaint seems to us to be sufficient.
It is assigned as error, that the court improperly struck out the second, third, foiu’th and fifth paragraphs of the answer. But neither is this objection urged. It could not be, in fact, for there is no bill of exceptions reserving the question.
Under the error assigned relating to the motion for a new trial several questions arise, only a part of which need be examined.
We give the evidence of the plaintiff and that of the conductor on behalf of the defendant. We do this as the readiest mode of getting into the opinion the most material facts
Appellee testified: “On March 20th, 1873, W. Scott "Wilkerson bought two tickets for passage on appellant’s railroad from Brownstown to North Vernon and return — one for himself and one for me. We got on the mail train at Brownstown, at about 5:30 p. m., and arrived at North Vernon about 7 P. M., same evening. The conductor, as we went up, took up the portion of each ticket to North Vernon, and handed back the return portion. We got on the train at North Vernon, bound west, about 2 A. M., to return to Brownstown, and when the conductor, Fields, came for our tickets, Wilkerson handed him the return portion of our tickets. When he took them, he said, ‘How do you expect to get to Brownstown?’ Wilkerson replied, ‘By the way of the O. & M.’ That was all the conversation we had with him at that time. The next time I saw the conductor was at Medora, eight miles west of Brownstown. From the point where the conductor took up our tickets to Medora was about thirty-five miles. The train did not stop at Brownstown. Medora was the first place the train stopped after leaving Brownstown. When Mr. Wilkerson handed our tickets to the conductor, he seemed to be mad because we wanted him to stop at Brownstown. I judged so from the manner in which he asked the question, ‘ How do you expect to get to Brownstown?’ At Medora the conductor said to me, ‘You had better get off here.’ I -went to the door of the car and asked him, ‘What place is this?’ He then said, ‘ Medora.’ I said to him, ‘ I guess I won’t get off here.’ He said, ‘I will see if you don’t.’ I said, ‘ You can put us off, but we do not intend to get off.’ The conductor did not seem to like it because we would not get off. When we said we would not get off, he said he would see if we did not get off at Scottville or Tunnelton. I did not get off at Medora. The fare from Brownstown to Medora is thirty-five or forty cents. We got to Medora about 3 o’clock a. m. The conductor did not propose to
A. F. Field’s deposition: “ I was conductor on appellant’s railroad March 20th, 1873. I know appellee and Wilkerson when I see them. They got on passenger express train No. 5, going west, about that time, at North Vernon. After leaving North Vernon I went to them for their fare. They were sitting in a seat together. They each handed me the return section of a round trip ticket from Browns-town to NorthVernon and return. I told them that the train did not stop at Brownstown; that we had a meeting point to make at Medora, and would lose our meeting place if we stopped, and that Brownstown was not a stopping place for that train. I then offered them their tickets back, telling them to go on some other train from Seymour that stopped at Brownstown. They refused to take back their tickets— said they proposed to go to Brownstown on that train. The train stopped at Seymour about five minutes, it being a regular stop for that train. After leaving Seymour, I noticed that they were still on the train, but said nothing to them till after the train arrived at Medora, that being the meeting point for express train east and No. 5. There I requested them to get off, which they refused to do. They further said that I dare not put them off. The train proceeded, and stopped at Mitchell, Shoals, Loogootee, Washington, Wheatland, and Vincennes, at which point my control of the train ceased, and I got off, and they got off also.
The appellee testified in rebutting as follows:
“ I know R. H. Sawyer and R. J. C. Smith. I heard Sawyer’s statement while on the witness stand. I have no recollection of having any such conversation with Saw
We think it apparent from the evidence that the appelleewas in fault in going upon a train to return to Brownstown,, which he knew, or by reasonable diligence might have known, did not stop at that place.
The fact that the appellee and his companion succeeded in getting their return tickets into the hands of the conductor, and then, after he found where they wished to be put off, refused to take them back from him, adds nothing to the merits of the appellee’s case.
¥e think the theory, in point of law, on which the case was tried, was a wrong one. It is the duty of a party going upon a railroad train to inform himself when, where, and how he can go or stop according to the regulations of the railroad company, and if he make a mistake, not induced by the company, and against which ordinary diligence and care would have protected him, he has no remedy for the consequences against the company. The Pittsburgh, etc., R. W. Co. v. Nuzum, 50 Ind. 141, and cases cited; Dietrich v. Pennsylvania R. R. Co., 71 Pa. St. 436; Chicago, etc., R. R. Co. v. Randolph, 53 Ill. 510.
The judgment is reversed, with costs, and the cause remanded, with instructions to grant a new trial.
Petition for a rehearing overruled.