Haute v. Phillips
| Decision Date | 17 November 1921 |
| Docket Number | 23,722 |
| Citation | 132 N.E. 740,191 Ind. 374 |
| Parties | Terre Haute, Indianapolis and Eastern Traction Company v. Phillips |
| Court | Indiana Supreme Court |
From Putnam Circuit Court; James P. Hughes, Judge.
Action by Essie Phillips against the Terre Haute, Indianapolis and Eastern Traction Company. From a judgment for plaintiff, the defendant appeals.
Reversed.
McNutt Wallace, Harris & Randel, for appellant.
Rawley & Baumunk, Harvey L. Fisher, Hays & Murphy and William F Elliott, for appellee.
OPINION
The appellee recovered a judgment for $ 8,250 damages for personal injuries sustained in a collision between an automobile driven by her father, with whom she was riding, and an interurban car operated by the appellant. The collision took place at the point where a country highway, approaching from the south, crosses appellant's railroad tracks and intersects the National road, appellant's tracks being immediately south of the traveled way in the National road, and either upon or adjoining the highway, without any fence between it and the wagon track, but not upon the traveled part of the highway. Appellee's father and a boy sitting beside him in the automobile were instantly killed by the collision.
The questions presented arise upon the overruling of motions to make the third paragraph of the complaint more specific, and of demurrers to each paragraph of the complaint, and a motion for a new trial, to each of which rulings the appellant excepted.
The third paragraph of the complaint alleged, in substance, that the crossing where the collision occurred was about three miles west of the city of Brazil; that a west-bound car in approaching it, would run down grade for the distance of 1,500 feet; that in the angle southeast of such highway crossing were a house, shrubbery and out buildings, and south of them were an orchard and a cornfield; that these obstructed the view of appellant's railroad toward the east by one riding in an automobile approaching from the south, so that she could not see a car coming from that direction until the automobile was within twenty feet of the south rail of the track; that the situation was such that the noise of a car approaching from he east was deflected to appear as if from the west; that an average of one vehicle each ten minutes throughout the day approached appellant's track from the south, and many passed along the National road (but it is not alleged that any vehicles passed over the railroad track on this crossing); that in coming down the grade toward the crossing the operation of the cars "made practically no noise;" that appellant's interurban car was the same color as the weeds and foliage; that the appellant knew all of said facts; that there was no "special safeguard or any arrangement to warn persons" using the crossing of the approach of cars, "as required in the exercise of due and ordinary care by the law of the State of Indiana;" that defendant failed to provide "any bells or other appliances or adequate warning;" that appellant ran one of its cars, four minutes late, and at about the time another car was due from the other direction, over said crossing from the east at the rate of sixty miles an hour, and struck the automobile running four miles an hour in which appellee was riding, and injured her. The conclusion was also stated that because of said conditions and surroundings, "notwithstanding reasonable prudence and care * * * required said company to provide some other and special safeguards at said particular crossing, such as an electric bell, a watchman or other like safeguards of a special nature * * * (appellant) carelessly and negligently failed" to do so.
The third paragraph further alleged in general terms, that the appellant "carelessly and negligently ran one of its cars on to and over said crossing at a rate of speed of more than sixty miles an hour, and carelessly and negligently ran said car into and against the automobile in which the plaintiff was riding, and against her," when she was exercising due care, and thereby injured her; and "that said injuries were caused solely and proximately by the negligence and fault of the defendant in the manner herein stated."
The appellant filed motions to make more specific each of the above quoted expressions, as to its alleged negligent failure to provide "safe guards" and "warnings," and what was "required in the exercise of due and ordinary care," and how it ran the car, by stating the facts supporting each alleged conclusion, and the facts constituting the alleged negligence, but the trial court overruled each of these motions and gave appellant an exception.
This must be deemed a decision by the trial court, procured by and binding upon the appellee, adjudging that all the facts known to and relied on by the appellee tending to support such general averments were already stated in this paragraph of the complaint. A statute now provides that recitals and conclusions in a pleading shall be deemed an allegation of the facts so recited and of the facts necessary to sustain such conclusions, so far as they are "necessary to the sufficiency of such pleading," subject to the right of the adverse party, by motion, to require that the facts to sustain the conclusions shall be set out. § 343a Burns' Supp. 1921, Acts 1915 p. 123.
This can only mean that where a proper motion to make the pleading more specific by setting out the facts is duly made, and is overruled, the pleading must be regarded as already stating specifically the facts relied on to support the conclusions to which such motion was addressed. And as so understood appellant was not harmed in this instance by the ruling on its motion.
This paragraph of the complaint does not charge that the car which struck appellee "made no noise," or that it failed to give the statutory signals when approaching the crossing; but it might be true, so far as these allegations are concerned, that the motorman sounded the whistle four times when eighty rods from the crossing, and again sounded it four times when less than thirty rods from the crossing, and again sounded it three times when fifty to seventy-five feet from the crossing, and that the driver of the automobile heard the whistle, but thought it came from the west, and therefore did not look eastward, and that the view toward the east was open for 300 feet while the automobile ran the last twenty feet toward the track, all as was indicated by evidence introduced at the trial. This paragraph alleges nothing to the contrary. And if the scope of the alleged conclusions be limited to the issuable facts alleged, but little is left of the charge of negligence except that many vehicles "approached" the crossing from the south, and many more passed by it along the National road, that the interurban car was running at the rate of sixty miles an hour, and that the appellant did not maintain an electric bell or a watchman at the crossing.
The mere fact that an interurban car was run over a highway crossing in the country at any speed consistent with the safety of the passengers, however fast that might be, would not in itself constitute negligence, as affecting a traveler passing over the track at such crossing. Terre Haute, etc., R. Co. v. Clark, Admr. (1880), 73 Ind. 168; Lake Shore, etc., R. Co. v. Barnes (1906), 166 Ind. 7, 76 N.E. 629, 3 L.R.A. (N.S.) 778n; Brooks v. Muncie, etc., Traction Co. (1911), 176 Ind. 298, 306, 95 N.E. 1006; Indiana Union Traction Co. v. Love (1912), 180 Ind. 442, 449, 99 N.E. 1005.
And while the conditions as to obstructions of view and amount of travel on such a highway might be such as to show negligence in dashing across it at sixty miles an hour, the facts alleged in this paragraph of complaint (disregarding the conclusions to which the motions to make more specific were addressed) are not such as to impose a duty to run slower. The paragraph was obviously drawn on the theory that under the facts stated the alleged failure to have a watchman or an electric bell at the crossing constituted actionable negligence, and its sufficiency must be determined on that theory. Actionable negligence consists of the three elements of (1) a duty imposed by law to do or not to do a certain thing, (2) a violation of that duty by doing the prohibited thing, or by failing to do the thing commanded, and (3) an injury proximately caused by such violation of duty. Interurban railroads are expressly authorized by law to operate across intersecting highways. No speed limit has been fixed for them by statute. And the rule of the common law which applies when locomotives and cars are pushed or drawn over crossings thronged with travel in city streets, as declared by the decisions cited in appellee's brief, has only an indirect and remote application to a crossing in the country, where the measure of care to be observed by the railroad company, in erecting sign boards, blowing the whistle, ringing the bell, carrying headlights, maintaining warning bells or watchmen, removing obstructions and even trimming hedge fences near such crossings, are regulated by express statutes, or by police orders of the Public Service Commission and other officers.
Whether the defects in the third paragraph of the complaint would require a reversal of the judgment in case it appeared that the cause was submitted to the jury upon proper instructions and that there was evidence fairly tending to establish the facts hinted at but not sufficiently alleged, need not be decided. For it appears that in giving instructions the court expressly adopted the theory that failure to maintain an electric bell or a watchman at the crossing constituted negligence, and so instructed the...
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