8 Ind. App. 367 | Ind. Ct. App. | 1893
The appellant has assigned numerous
The action was brought to recover damages for a personal injury sustained by the appellee through the alleged negligence of the appellant while appellee was loading some household goods to be carried upon a freight car set apart to the appellee for that purpose by the agents of the appellant. It is claimed, in argument, on behalf of appellant, that the special verdict of the jury, when purged of mere evidentiary facts and legal conclusions, is insufficient to show culpable negligence on the part of appellant and freedom from contributory fault on the part of appellee, and that the court consequently erred in overruling the appellant’s motion for judgment in its favor upon the special verdict.
From the facts found, it appears, in substance, that the appellant was, at the time of the alleged grievances, a common carrier of goods and freight, for hire, over a line of railroad operated by it, the main track of which ran through the town of Swayzee, in Grant county, Indiana, where the appellant maintained a station, switch and side track for the use and convenience of persons receiving and transporting freight, which station and the business connected therewith were under the management and direction of a station agent of the appellant; that the side track at the point mentioned branched off from the main track, running east and west on the north side thereof, running for a distance of 1,000 feet or more, where it again joined the main track, and was so constructed and arranged that the cars and engines could pass from the main track over and upon the side track from either the east or west end thereof; that the appellee, who resided in the town of Swayzee, desired to have transferred and carried by the appellant, over the line of
It is further found, that in order to get into the car the appellee had placed a board about ten feet long and eight inches wide, with one end upon the ground and the other in the iron stirrup under the open door of the car, and then placed a chair upon the ground at the side of such board in such position that she could and did climb upon it, thence to the board and into the car; that in taking the train upon the side track, the appellant or its agents and employes in charge of the same gave no warning of the approach of said train, and did not sound the whistle or ring the bell of the locomotive; that they did not place or have a brakeman or other person at the rear end of said backing train or at the said car for the purpose of watching and controlling the approach of the train, and to make the coupling with the car; that at the time the train so struck said car in which appellee was engaged, the board and chair referred to were in the position as above described, and had been in such position for more than fifteen minutes prior thereto, and that a large quantity of appellee’s carpets, parcels of her said household goods, was then, and for more than an hour had been, lying on the ground in front of said open door,
Negligence may be defined to be a violation of some legal duty which one person owes to another. If the appellant, therefore, owed the appellee such duty, and failed to perform the same, and by reason of such failure the appellee received the injury complained of, there is a legal liability, unless the appellee, by her own negligence, was instrumental in bringing about the result.
A person engaged at some certain place in some particular business, trade, or occupation to which he either expressly or by implication invites others for the purpose of transacting the ordinary business there, is in duty bound to keep such place in a reasonably safe condition for those so invited, and, failing to do so, any such visitor sustaining an injury solely by reason of such failure has his right of action against the proprietor for the
A railroad company, which is a common carrier of goods, and by its conduct invites or induces the public to use its premises, such as depots and other places set apart for receiving and discharging freight, is under special obligation to keep such premises safe for such use for all persons coming upon the premises to transact business with such company, and among those who are entitled to this protection are such persons as come there for the purpose of delivering or receiving freight. Shelbyville, etc., R. R. Co. v. Lewark, 4 Ind. 471; Newson v. New York Central R. R. Co., 29 N. Y. 383; Stinson v. New York Central R. R. Co., 32 N. Y. 333; Barton v. New York Central, etc., R. R. Co., 1 Thompson & C. 297; Chicago, etc., R. W. Co. v. Fillmore, 57 Ill. 265; Toledo, etc., R. W. Co. v. Grush, 67 Ill. 262; Illinois Central R. R. Co. v. Hoffman, 67 Ill. 287; Campbell v. Portland Sugar Co., 62 Me. 552; Railroad Co. v. Hanning, 15 Wall. 649; New Orleans, etc., R. R. Co. v. Bailey, 40 Miss. 395; 1 Thompson Neg., 313.
This duty includes the further one of furnishing to persons lawfully upon the railroad track of such company, engaged in loading or unloading freight, protection from injury by approaching trains or locomotives. In such cases, a person having business with the company of the character indicated, has a right to occupy a position designated by the agent of the company, even if such position be hazardous, and to rely upon the diligence of the’company to protect him from danger. Newson v. New York Central R. R. Co., supra; 3 Lawson’s Rights and Rem., section 1193, and authorities cited; Wabash, etc., R. W. Co. v. Locke, Admr., 112 Ind. 404.
In the present case, the servants of the company knew, or had good reason to know, that the appellee was in the
Piad the station agent notified the appellee that the car was to be taken by the freight train, or had he informed the trainmen of the presence of the appellee in or about the box car, as we think he was in duty bound to do, it is probable that the accident would not have occurred, and, if it had, there might be some ground for the claim now made that negligence on the part of the appellant was not shown, unless, after such notice to them, the trainmen in charge had persisted in making the coupling in the manner in which the jury found it was made, not-' withstanding the notice given them of the presence of the appellee at the car.
It is our opinion that the facts found by the jury show culpable negligence on the part of appellant’s servants, for which it should respond in damages, unless the appellee was herself in some fault.
Nor do we think the finding warrants the conclusion that there was contributory negligence. Certainly it can not be maintained that the appellee was in a place where
The rule of looking and listening has no application to a case where the injured person has been lulled into a feeling of safety by the conduct of the company, through the negligence of which the injury was inflicted. The case is somewhat analogous to one in which a person employed to do work on the railroad track is run over or injured while engaged in such work. It is no want of diligence for such person to become so engrossed in his labor as to be oblivious to the approach of a train, relying, as he may, upon the performance of the duty imposed by law upon the railroad company with reference to him. 2 Thomp. Neg., p. 461, and cases cited.
The appellant’s counsel, in their supersedeas brief, also make some complaint of a ruling of the trial court
“The appellee was permitted to introduce testimony, over the objections of the defendant, which we contend was incompetent; and without calling attention to all the testimony of this class, we shall only refer to one or two of the errors of the court:
“Error D. — ‘Q,. What would she say about sleeping when she came down stairs?’ ‘A. She complained of her arm hurting; she said it pained her so she could not sleep.’ ”
Counsel then proceed to argue the inadmissibility of the testimany quoted, without designating the witness who gave it or referring in any manner to the place in the record where the same may be found.
We do not think this is a compliance with the well known rules of both this court and the Supreme Court, requiring the counsel to point out in their brief the particular page and line of the transcript where the alleged erroneous ruling was made. The court will not search the record in any case, for the appellant, to find the error which counsel assert has been committed. It is the duty of the appellant to establish error affirmatively, and in connection with such obligation, he must direct the court to the place or places in the record where it is made to appear that the error was committed. Elliott’s App. Proced., section 440, and cases cited.
We have considered all the alleged errors discussed by counsel, and found none for which the case should be reversed.
Judgment affirmed.