171 Ind. 160 | Ind. | 1908
Lead Opinion
Appellee recovered a judgment for $10,-000 against appellant for personal injuries inflicted through an alleged breach of its duty as a common carrier of passengers. The complaint is in a single paragraph, and the negligence charged against appellant was (1) in failing to light its station grounds properly;- (2) in carelessly running its train of ears; (3) in negligently failing to guide and direct appellee. Appellant answered by general denial.
Errors are properly assigned upon the overruling of appel
The facts shown hy the evidence are substantially as follows : Appellee was a carpenter, twenty-eight years of age, and came from Nashville, Tennessee, to Michigan City, Indiana, on May 13, 1904. He had traveled considerably, both in the daytime and in the night-time, but had •never before been in Michigan City. He reached appellant’s station by means of an electric car about 11 o’clock p. m., and had with him two trunks, one tool-chest, and two grips. The electric car stopped on the north side of appellant’s tracks, and appellee’s baggage was unloaded there. The night was windy, cloudy and dark. The railroad station consisted of a combination passenger- and baggage-car, placed south of the tracks, and between the station and the main track there was a switch track. A partition divided the car, and the station agent used the west end of the car as an office, and the east end was used as a waiting-room for passengers. The car was lighted on the inside by two lamps, and there was a signal-light on the outside, on the south side of the car, which east its rays east and west. Appellee was informed by. the street-car conductor that the railroad and depot grounds were new, the station unfinished, and that this car was used as a waiting-room. A stranger pointed out the station ear, and leaving his baggage on the north side of the tracks, appellee crossed over and entered at the east end of the car. He was accompanied by a companion, and their train was not due until 1:50 o ’clock a. m. Appellee bought two tickets for St. Joseph, Michigan, the agent agreed to look after the checking of the baggage, and promised to awaken appellee when his train arrived. Appellee had been traveling since noon of May 12, rode the night before in a day coach from Louisville, Kentucky, to Monon, Indiana, slept some on the way, but was tired when he reached Michigan City. The agent having promised to
Appellant’s motion for a new trial alleged that the verdict was not sustained by sufficient evidence, and was contrary to law, and that the court erred in denying appellant’s request for a peremptory instruction.
The case of Louisville, etc., R. Co. v. Lucas (1889), 119 Ind. 583, 6 L. R. A. 193, involved an accident to a passenger on account of a defect in the station platform, and this court, speaking of the duty of the company, said at page 590: “It is bound to use the highest degree of practical .care to provide against accidents to passengers that may be foreseen and prevented.” This statement of the law is erroneous and disapproved, so far as it purports to define the duty of a railway company to provide and maintain instrumentalities and accommodations not'directly employed in the transportation of passengers, such as platforms, waiting-rooms and appurtenances.
6. 7. Appellee’s counsel invoke the principle that although no assistance be exacted under the law, if any be tendered it . must not be negligently rendered. Appellant’s agent, with a white light in his hand, went out upon the platform and took a position at the proper point for receiving passengers alighting from the train, and as appellee approached, said agent, called out: “Come up this' way,” or “Come on boys, we will get on up here,” or “Come up this way boys; here is where you will get on your train. ’ ’ This guidance cannot be regarded as being in anywise negligent, nor can it be made so by the circumstance that appellee erroneously thought the call to him came from the north side of the track, and was thereby induced to make an attempt to cross in front of the engine. The most serious charge of negligence preferred against appellant is in failing adequately to light its station grounds. The duty imposed upon railway companies to exercise ordinary care for the safety of their passengers, includes an obligation to keep their stations, platforms, walks and other approaches reasonably lighted at night, for a sufficient time before the arrival and after the departure of trains, to
Conceding that appellant did not perform the full measure of its duty to the traveling public in the matter of supplying lights for its premises, and, taking conditions as they were, we are clearly of opinion that appellee’s injury must be attributed, in part at least, to his lack of attention and indifference to his surroundings. He was a stranger and unacquainted with the station grounds, but he did not disclose that fact or seek information. The station platform was low, 12 feet wide and 110 feet long, situated between the waiting-room and the main track, in such a position as to require appellee to pass over it in going to his train, and to expose him to no danger. The agent walked ahead with a white lantern, and called out, “come up this way,” in a tone of voice which all heard. Appellee, falling behind the other passengers, says that he did not see the lantern and misunderstood the direction from whence the voice came, but this mistake was his, and he must bear the consequences. He was told that his train was coming, and, going outside, ■he saw the headlight when the train was probably two hundred or three hundred feet away. He traveled twenty-five or thirty feet in a northwesterly direction, half facing the approaching train, and looked at the light again when it was ten or twelve feet distant: He erroneously thought the train had stopped, and' attempted to cross the main track directly in front of the engine. His ignorance of the premises, the absence of general lighting, and the attendant darkness imposed upon him the duty of exercising greater vigilance for his safety. The absence of platform lights was not the sole cause of the accident, since the instrument with which he collided was distinctly visible at all times. He -knew where the engine was, and its powerful headlight so lighted up his path as to enable him to know when he stepped upon the main track, and to see and dis
We have considered appellant’s motion for judgment upon the answers of the jury to special interrogatories, notwithstanding the general verdict, but are of opinion that such answers are not sufficiently full and conclusive to overthrow the general verdict, and therefore have determined the appeal upon the evidence.
The judgment is reversed, with directions to sustain appellant’s motion for a new trial.
Rehearing
In the original opinion appellant’s bill of exceptions containing the evidence, and motion for a new trial, were treated as properly in the record, without any discussion of the questions relating thereto made by appellee’s counsel. On petition for a rehearing it is alleged that the court erred in holding such bill of exceptions and motion for a new trial to be in the record, and in holding that, upon the evidence as a matter of law, appellee was guilty of contributory negligence.
“Mo. filed for N. T. Mo. for N. T. ov and ex. Pray ap to Sup. Ct. and granted. Bond sum $15,000.00 by Sept. 11, ’05, Aetna Indemnity Co. as surety. 90 days for bill of ex. Pltffi. obj. to surety, ov. and ex.”
These notes were clearly sxifficient to justify the court in making the requested correction, showing, in accordance with the fact, that appellant was given ninety.days in which to prepare a bill of exceptions upon the overruling of its motion for a new trial.
On October 3,1905, appellant filed a precipe with the clerk of the circuit court, calling for a complete transcript of the record in the. cause, except that the original bill of exceptions containing the. evidence be certified instead of a copy thereof. On November 8, 1905, a further precipe was filed requesting a transcript of the proceedings relating to the nunc pro tunc entry. The argument of appellee’s counsel is, that time beyond the term for filing the bill of exceptions being given only by the nunc pro tunc order of court,
We have again considered the merits of the case upon the evidence, and adhere to the holding that it appears as a matter of law that appellee failed to exercise that ordinary care for his safety which the law exacts of a mature person in the circumstances shown.
The petition for a rehearing is accordingly overruled.