Toledo, St. Louis & Kansas City Railroad v. Wingate

Howard, C. J. This was an action brought by appellee, a passenger on appellant’s train, to recover damages for personal injuries alleged to have been — 126 — received by her on alighting from the train at one of appellant’s regular stations. The complaint was in three 'paragraphs; the third paragraph, however, was withdrawn at the close of the evidence and before the verdict. A demurrer was overruled to each paragraph of the complaint, after which a general denial was filed and the cause was submitted to a jury, who gave a verdict to the appellee in the sum of eight thousand dollars, also answering certain interrogatories. The sufficiency of the complaint, under the ruling of the court on the demurrer, is first considered. From the first paragraph of the complaint it appears, amongst other things, that the town of Wingate is a regular station on appellant’s road, where passengers are received and discharged; that the board platform at said station is so negligently constructed that passengers cannot get off the cars without great danger, for -the reason that it is twenty-six inches from the lower steps of the cars down to the platform; that children and lady passengers, on alighting, are compelled to jump down with both feet, to their great hazard, and which they cannot do without almost certain injury when the cars are in motion, unless they are assisted; that in consequence of such careless manner of constructing said platform, and on account of other negligent. acts and omissions'of appellant, to be hereinafter stated, appellee was, without any fault on her part, sorely maimed and injured on the 5th day of May, 1891. The complaint then continues: That on said 5th day of May, 1891, the plaintiff (appellee) “was a passenger on defendant’s train of cars, from the city of Frankfort, Indiana, riding thereon upon a ticket purchased of defendant, entitling her to be so carried between said stations and to be safely delivered at said Wingate; that she — 127 — entered the defendant’s car at Frankfort, carrying with her a goodly sized package, consisting of two pieces of carpet, rolled separately, but lashed and tied together in one bundle, and some other small packages in her possession in said car, was accepted as a passenger thereon by the conductor in charge of said train; that shortly after said train left the station of Frankfort, the conductor in charge thereof passed through the car in which plaintiff was riding as ’ aforesaid, and took up her said ticket, and was then and there and thereby informed that her destination was Wingate, and that she desired and intended to get off said train at said station, and that said conductor then and there saw plaintiff’s said packages and bundles and knew that she would need assistance in disembarking therewith from said .train at said station; that defendant carelessly and negligently failed to stop said train at said station of Wingate a sufficient and reasonable length of time to permit plaintiff to alight therefrom in safety, and that the conductor and other servants of defendant carelessly and negligently failed to assist plaintiff in alighting therefrom with her said bundles and packages, and whereby and on account of which carelessness and negligence, and without fault or negligence on her part, plaintiff was injured as hereinafter fully alleged ; that when said train was within about one-fourth of a mile from said station- Wingate, the whistle of the locomotive drawing the same was. sounded and the brakeman on said train opened the door of the car in which plaintiff was riding as aforesaid and announced “Wingate,” thereby informing plaintiff that the train was nearing her destination; that immediately after the sounding of the whistle and the announcement of the station as aforesaid, said train was run on the side track on the south side of defend — 128 — ant’s main track and immediately east of the station of Wingate, and stopped for the purpose of letting the east bound passenger train pass on said road; that the place where said train stopped on the side track, as aforesaid, was not the place for passengers to disembark therefrom, and plaintiff, knowing said fact and for that reason, made no effort to get off at said place, but remained in her seat, in said car, waiting for the train to pull up on the main track, to the usual and proper place for passengers to alight at said station; that as soon as the said east bound train passed, the train upon which plaintiff was riding, as aforesaid, immediately backed on to the main track, and thence proceeded westward, at a moderate rate of speed, toward the usual, customary and proper stopping place at said station, Wingate; That no other or further announcement of the station was made than as hereinbefore alleged, but plaintiff, knowing the train was nearing the proper place for her to get off, made ready to do so without delay, by putting her bundles and packages together for a quick and easy handling, arranging her wraps, etc.; that the train made a momentary stop at, or near, the proper and usual place for passengers to alight therefrom, and that as it “slowed up” and stopped momentarily, as aforesaid, plaintiff arose quickly from her seat in the car, gathered up her bundles and packages in her arms, and without delay proceeded in a brisk walk unassisted by the conductor, or other train men, toward the front or forward end of the car, the proper door for passengers to make their exit therefrom; that, upon reaching and opening said door of the car, she found that the car was in gentle motion, but supposing that the train was merely pulling up to take on or unload baggage, and believing and expecting, as well she might, that the conductor, or other servant of defendant would meet — 129 — and assist her down the steps and to alight in safety, she proceéded cautiously and carefully, though rapidly, out onto the platform of the car, and then finding that the car was still moving and more rapidly, and not seeing any one to assist her, she was stricken with dismay and fright and seized with fear that she would be carried past her station and away from home, and feeling that she must get off, and yet believing and expecting that ■ the conductor or other train men would meet her, take her bundles and packages and aid her in alighting, as was their duty and custom with female passengers, she proceeded down the steps of the car toward the station platform; that no servant of defendant was there to assist her or save her from falling, but they carelessly and negligently failed and refused to do so; that at or about the time she reached the lower step of the car, the speed of the train and car, on the step of which she was stepping, was carelessly, negligently, and suddenly quickened and accelerated by defendant, whereby the plaintiff, without any fault, carelessness, or negligence on her part, but wholly through the carelessness and negligence of the defendant and its servants -by failing to stop said train at said station a sufficient and reasonable length of time to permit her to alight in safety by the negligent failure of the employes thereof to assist in alighting, and the careless and negligent starting and jerking of the car, and the negligent, careless, and faulty planning and constructing of the platform, all as aforesaid, was severely wrenched and strained, and was thrown violently down from the car step to the platform, a distance of more than two feet below, striking first upon the back of her head, neck, and shoulders upon the hard and solid timbers and planks of the platform, whereby she was greatly — 130 — bruised and wounded and severely and dangerously shocked and crippled.” The second paragraph of the complaint is similar to the first, except that it is alleged, in substance, that the train did not come to a full stop at the station, but only “slowed up,” or “slacked the speed.” It seems very clear, from the allegations of the complaint, that in the manner of constructing its platform, and also in the manner of running its train on this occasion, the appellant company was guilty of culpable negligence. The slightest consideration for the convenience and safety of its passengers would have suggested to appellant that the platform ought not to be laid twenty-six inches below the level of the lower steps of the cars, thus compelling the alighting passengers, even women and children, to leap from the steps like chickens from their perches. As to the running of the train, it is alleged that as it approached the station the name of the place was called out' by the brakeman. At the station the train either stopped for a moment, or merely slacked its motion, not giving appellee time to leave the car before it started on again. The passenger was a lady, loaded with heavy bundles, and it had been the custom at this station to aid lady passengers to alight, as plainly appears from the allegations. The conductor saw her and her bundles, took up her ticket, and knew that she was to stop at Wingate; but no aid or assistance was given her, nor was she able to get from her seat to the car door befoi’e the train was again in motion, if indeed it came to a stop at all. The appellant was clearly negligent in thus failing to give appellee sufficient time to alight in safety from the train. In Terre Haute, etc., R. R. Co. v. Buck, Admx., — 131 — 96 Ind. 346, the following from Pennsylvania R. R. Co. v. White, 88 Pa. St. 327, is cited with approval: “It is the duty of the company to provide.for the safe receiving and discharging of passengers. It is bound to exercise the strictest vigilance not only in carrying them to their destination, but also in setting them down safely, if human care and foresight can do so. Railroad Co. v. Aspell, 11 Harris 147.” In Jeffersonville R. R. Co. v. Hendricks, Admr., 26 Ind. 228, the court said : “It was, most unquestionably, the duty of the conductor, or those in charge of the train, to stop at the station a Sufficient time to enable the deceased to get safely off, and if from any cause it was necessary that she should have aid in getting from the train, it should have been furnished by the defendant.” See also Jeffersonville, etc., R. R. Co. v. Parmalee, Admr., 51 Ind. 42. That it is the duty of a railway carrier of passengers to provide for the safe entry and exit of its patrons from its cars, including the proper care of its depots, platforms and approaches, see further : New York, etc., R. W. Co. v. Doane, 115 Ind. 435; Louisville, etc., R. W. Co. v. Lucas, 119 Ind. 583 (6 L. R. A. 193); Lucas v. Pennsylvania Co., 120 Ind. 205; Pennsylvania Co. v. Marion, 123 Ind. 415 (7 L. R. A. 687); Ohio, etc., R. W. Co. v. Stansberry, 132 Ind. 533. The negligence of the appellant is therefore evident. It remains to see whether the complaint shows any contributory negligence on the part of the appellee. The complaint alleges that the appellee was injured “ without fault or negligence on her pax’t.” It has been repeatedly decided that', in a complaint for personal injuries, the general allegation that the plaintiff was without fault is sufficient to negative contributory negligence; and that the complaint will he good in this — 132 — respect if there are no further and specific allegations, inconsistent with the general allegation of due care. If, however, after the statement that the plaintiff was free from fault or negligence, the complaint goes on to give particular acts showing that, as a matter of fact, the plaintiff was not free from negligence, such particulars will be held to control the general statement. The allegation that the plaintiff was without fault, standing by itself, would be sufficient; yet such general allegation is in reality but a conclusion, and will be overcome by the allegation of particular facts inconsistent therewith. When the particular facts are given, the court is itself able to draw the proper conclusion, and to say whether the conclusion of the pleader was warranted. Ivens v. Cincinnati, etc., R. W. Co., 103 Ind. 27. The particulars of appellee’s acts in relation to her injury, as stated in the complaint, are that appellee, “knowing the train was nearing the proper place for her to get off, made ready to do so without delay, by putting her bundles and packages together for a quick and easy handling, arranging her wraps, etc.; that the train made a momentary stop at, or near, the proper and usual place for passengers to alight therefrom; and that as it ‘ slowed up ’ and stopped momentarily, as aforesaid, plaintiff arose quickly from her seat in the car, gathered up her bundles and packages in her arms, and, without delay, proceeded in a brisk walk, unassisted by the conductor or other trainmen, toward the front or forward end of the car, the proper door for passengers to make their exit therefrom.” So far, it is obvious that the appellee was in the exercise of all due care; and if she had been hurt on reaching the door by a sudden starting of the train, the company would have been liable. Such was the case of Ohio, etc., R. W. Co. v. Smith, 5 Ind. App. 560 ; and — 133 — also that of Chicago, etc., R. R. Co. v. Arnol, 144 Ill. 261 (19 L. R. A. 313). But, in the case at har, the complaint continues: ‘ ‘That upon reaching and opening said door of th.e car, she found that the car was in gentle motion, but supposing that the train was merély pulling up to take on, or unload, baggage, and believing and expecting, as well' she might, that the conductor or other servant of defendant would meet and assist her down the steps and to alight in safety, she proceeded cautiously and carefully, though rapidly, out onto the platform of the car; and then, finding that the car was still moving and more rapidly, and not seeing anyone to assist her, she was stricken with dismay and fright, and seized with fear that she would be carried past her station and away from home, and feeling that she must get off, and yet believing and expecting that the conductor or other trainmen would meet her, take her bundles and packages, and aid her in alighting, as was their duty and custom with female passengers, she proceeded down the steps of the car toward the station platform. ” It requires no argument to show that this statement discloses inexcusable negligence on the part of the appellee. As soon as she opened the car door, loaded as she was with bundles, she saw that the car was in motion; and yet she persisted in proceeding ‘ ‘ rapidly out onto the platform of the car. ” And then, although ‘ ‘ finding that the car was still moving and more rapidly, ” and though “not seeing anyone to assist’her,” yet, fearing “that she would be carried past her station and away from home, and feeling that she must get off,” she deliberately, on the “more rapidly” moving car, “proceeded down the steps of the car toward the station platform.” The result was inevitable; with her arms full of bun134 dies, she “was thrown violently down from the car steps to the platform. ” Filed April 24, 1894. Note. — A very extensive review of the authorities as to injuries in getting on and off railroad trains is contained in a note to Carr v. Eel River & E. R. Co. (Cal.), 21 L. R. A. 354. It will not do to say that the appellant company was in fault. That seems evident enough. But she was herself also in fault, and cannot recover under this complaint. When she found the car in motion, she should have returned to her seat, and asked compensation of the company, if she were entitled to any, for carrying her past her station and away from her home. Jeffersonville, etc., R. W. Co. v. Hendricks, Admr., supra; Reibel, Admx., v. Cincinnati, etc., R. W. Co., 114 Ind. 476; O’Toole v. Pittsburgh, etc., R. R. Co., 158 Pa. St. 99 (22 L. R. A. 606). Had appellee been directed by the conductor or other trainmen in charge to come out on the platform or down on the steps; or had the car not been in motion until she l’eached the lower step and was about to step off, we should have a different case. As it is, she can-' not recover. The evidence and answers to interrogatories are in substantial agreement with the allegations of the complaint; and the other questions discussed by counsel are covered by what we have said of the complaint, and need not be further considered. The judgment is reversed, with directions to sustain the demurrer to each paragraph of the complaint, and for further proceedings.