33 Ind. App. 128 | Ind. Ct. App. | 1904
Action for damages on account of personal injuries. Judgment for $2,750. Appellee was a passenger on one of appellant’s passenger trains running between New Albany and Jeffersonville. lie desired to alight at Uinth street station in the former city, to which point he had purchased his ticket. Ho question is made as to the sufficiency of the complaint, in so far as appellant’s negligence is concerned. It is averred: That said station was reached about five minutes before 11 o’clock p. m. on January 29, 1901; that the night was dark and stormy, much rain having fallen, rendering appellant’s platform slippery and un
While various acts of negligence upon the part of appellant are charged, it- is made affirmatively to appear that the fact that the train was moving at the time appellee alighted contributed to cause the injury complained of. If the complaint shows that appellee was himself at fault in leaving the train as he did, then the demurrer to the complaint should have been sustained. The pleading discloses that appellee voluntarily alighted from a moving train. Such act was not necessarily negligent. Whether it was negligent or not depended upon attendant conditions. The question was for the jury unless the conditions disclosed are such as to exclude the inference of non-negligence, in which case it was for the court. Harris v. Pittsburgh, etc., R. Co., 32 Ind. App. 600; Louisville, etc., R. Co., v. Crunk, 119 Ind. 542, 12 Am. St. 443; Carr v. Eel River, etc., R. Co., 98 Cal. 366, 21 L. R. A. 354, notes; Distler v. Long Island R. Co., 151 N. Y. 424, 45 N. E. 937, 35 L. R. A. 762; Watkins v. Birmingham R., etc., Co., 120 Ala. 147, 24 South. 392, 43 L. R. A. 297.
The averments of the complaint show that appellee, when he alighted, supposed the train Was standing still. It is not averred that it was prudent for him to leave the train when in motion, as he did; the contrary, indeed, is shown. It is inferable, as against the pleading, that had he known the train was in motion he would not have left
Judgment reversed, and cause remanded, with instructions to sustain the demurrer to the complaint.