71 Ind. App. 102 | Ind. Ct. App. | 1919
— The appellee’s complaint is in two paragraphs. In the first it is alleged that appellant is a corporation engaged in the operation of a railroad passing through Gas City and Upland; that appellee purchased a ticket from appellant’s agent at Gas City entitling him to be carried from Gas City to Upland; that he took passage on a train leaving Gas City at 2:17 a. m., scheduled and advertised to stop at Upland on flag to take on and discharge passengers. It is then averred: “That as said train approached the station at- Upland, it began to slow down, and that he, the plaintiff, believing that it would come -to a full stop as it was scheduled and advertised and as the defendant company had agreed, went to the front end of the car in which he was riding and the brakeman on said train being then and there in the employ of this defendant company said to this plaintiff, ‘Do you get off here?’ and, being answered in the affirmative, the said brakeman opened the door of said car and said, ‘Albright,’ and it-being in the nighttime and dark and there being no
The second paragraph, after alleging that appellant is a corporation engaged in the operation of a railroad, the purchase of a ticket by appellee, and the taking passage as alleged in the first paragraph, alleges that: “As said train approached said town of Upland it began to slow down and the plaintiff believing that it would come to a full stop as it was Scheduled and advertised by defendant to do, left his seat in said train and went forward to the front end of the car in which he was riding, and that an employe of said defendant, the brakeman upon said train, said to this plaintiff, ‘Do you get off here,’ and upon the plaintiff answering in the affirmative, said brakeman opened the door of said car and said to the plaintiff,
Appellant filed a demurrer to each paragraph of complaint, which was overruled and exception saved.
There was a trial by jury, verdict and judgment for appellee. The jury was required to and did answer a number of interrogatories which they returned with their general verdict.
The errors relied on for reversal are the overrul
There is but one conclusion to be drawn from the facts pleaded. The appellee was guilty of such negligence as will preclude a recovery. The demurrer to the second paragraph of complaint should have been sustained. Pittsburgh, etc., R. Co. v. Miller, supra.
As said in the case just cited, the facts differentiate this case from those in which the train- is not stopped a sufficient time to allow the passenger to leave it, from those in which he is invited or directed by the trainmen to alight, and also from those in which the passenger’s action is influenced by his tender age or other incapacity.
In Reibel, Admx., v. Cincinnati, etc., R. Co. (1888), 114 Ind. 476, 17 N. E. 107, the complaint was held insufficient, the court saying: “The general rule is, that passengers who are injured while attempting to get upon or off. a railroad train while it is in motion cannot recover for their injuries. * * * . To
In England v. Boston, etc., Railroad (1891), 153 Mass. 490, 27 N. E. 1, the court said: “The plaintiff acted on the belief that the train had stopped when it had not stopped, and this mistake was due to her own omission to use reasonable care. The fact that it was dark where she attempted to alight rendered more caution not less necessary on her part. To step off of the train where it was, as the plaintiff’s husband testified; ‘so dark that a person couldn’t see where he or she was going,’ under circumstances that'
And in the ease of East Tennessee, etc., R. Co. v. Holmes (1893), 97 Ala. 332, 337, 12 South 286, 288, the court said: “He made the leap of his own accord, at great peril to his life and limb, because, as it would seem, he did not desire to be carried beyond his destination. He thus took the risk of his own reckless venture, and the defendant ought not to be made to pay for it. There was not even the excuse-of necessity for- his having done so. * * * No one has the right to leap from a moving train, because he is being carried beyond his destination, with the expectation of claiming from the railroad company damages for any injury he may sustain. His duty is to remain aboard, and demand redress for the injury that may have been done to him.” See, also, Toledo, etc., R. Co. v. Wingate (1895), 143 Ind. 125, 37 N. E. 274, 42 N. E. 477.
Appellant insists that this instruction is erroneous, because it is not applicable to the evidence or relevant to the issues, is misleading, and invades the province of the jury. The contention of, appellant is that it is the duty of a person going upon a train to make known to. the conductor or person in charge of the train his destination, especially if his destination is a flag station where the train does-not stop regularly.
In Chattanooga, etc., R. Co. v. Lyon (1892), 89 Ga. 16, 16 S. E. 24, 15 L. R. A. 857, 32 Am. St. 72, it was held that, when a railroad company sells a ticket to a flag station at which its trains do not stop unless signalled to do so for the purpose of receiving passengers, or when :there are on boa^d
We are aware of the fact that there are cases where a different rule has been announced, but, as a rule, there were facts sufficient in each instance to distinguish such cases from the one now under consideration, such as a rule requiring the passenger to notify the conductor, knowledge on the part of the passenger that the train would not stop unless the conductor •was notified. Rock Island, etc., R. Co. v. Stevens, (1907), 84 Ark. 436, 105 S. W. 1032, 108 S. W. 517, 16 L. R. A. (N. S.) 1132. We find no error in the giving of the instructions.
The judgment must be reversed, however, on ac
Judgment reversed, with instructions to sustain demurrer to the second paragraph of the complaint, and for further proceedings not' inconsistent with this opinion.