Central Indiana Ry. Co. v. Anderson Banking Co., 20246

• Decision Date: 12 May 1969
• Docket Number: No. 20246,20246
• Citation: 247 N.E.2d 208,252 Ind. 270
• Parties: CENTRAL INDIANA RAILWAY COMPANY, Appellant, v. The ANDERSON BANKING COMPANY, Administrator of the Estate of James Edward Jones, Deceased, American Transport Company, Inc., Appellees.
• Court: Indiana Supreme Court

Page 208

247 N.E.2d 208

252 Ind. 270

CENTRAL INDIANA RAILWAY COMPANY, Appellant, v. The ANDERSON BANKING COMPANY, Administrator of the Estate of

James Edward Jones, Deceased, American Transport

Company, Inc., Appellees.

No. 20246.

Supreme Court of Indiana.

May 12, 1969.

Wilbur F. Pell, Jr., Pell & Matchett, Shelbyville, for appellant; Russell E Stewart, Stewart & Austin, Anderson, of counsel.

Howard S. Young, Jr., Thomas J. Young, Indianapolis, H. Harold Soshnick, Paul T. Brenton, Shelbyville, for appellees.

ON PETITION FOR REHEARING ON DENIAL OF TRANSFER

ARTERBURN, Judge.

This case comes to us on petition for rehearing upon a previous denial of transfer from the Appellate Court. See opinion of Appellate Court reported in 240 N.E.2d 840.

The appellee, The Anderson Banking Company, as Administrator of the estate of James Edward Jones, brought this action against appellant, Central Indiana Railway, and American Transport Company as joint tort-feasors for damages caused by the alleged wrongful death of appellee's decedent, whose death resulted from a nighttime collision between a truck owned by American Transport and the side of the caboose of a train owned by Central Indiana Railway Company. A trial by jury resulted in a verdict for appellee-plaintiff and judgment was rendered accordingly. Appellant, Central Indiana Railway, appealed from the overruling of its motion for a new trial. The Appellate Court affirmed the trial court.

The driver of the truck did not appeal, but the railroad company did, on the ground that there was no negligence shown as to it. The trial court below gave an instruction to the effect that the jury could not consider whether or not the railroad had a duty to establish flashers at the crossing and put reflectors on the side of the cars. The Appellate Court affirmed the trial court. The result of the Appellate Court affirming the trial court is correct, but certain language used by the Appellate Court in this opinion is erroneous, namely:

'Since it is not negligence in Indiana for a railroad not to equip its crossings with automatic signals or provide reflectors on the sides of its cars unless required to do so by the Public Service Commission, it is error for a court, when timely requested, to refuse to withdraw such allegations from the consideration of the jury. However, in the instant case, the court instructed the jury that the appellant had no duty to install flashers or reflectors to protect the traveling public and that such failure is no defense in so far as the defendant American Transport Company is concerned.' (240 N.E.2d, pp. 849, 850.)

The effect of this language was to admit that the trial court made a mistake by not withdrawing the issue of the railroad's alleged negligence in not providing flashers or reflectors to warn oncoming traffic, but to further say that the error was rendered harmless by the court's subsequent instruction that the railroad was under no duty to provide flashers or reflectors.

Four states, Pennsylvania, New York, West Virginia and Wisconsin, adhere to the minority view expressed by the Appellate Court that denies the jury the right to ascribe negligence to a railroad company for failure to warn oncoming traffic of the presence of a train on the crossing. The Indiana view is illustrated by New York Central R.R. Co. v. Casey (1938), 214 Ind. 464, 468, 14 N.E.2d 714:

'There is no statute of this state requiring a railroad company, while its train, or any part thereof is occupying a highway crossing, either in passing thereover or when standing thereon, to station an employee at any such crossing to warn travelers on the highway that the road is obstructed by a locomotive, freight car, or other car, forming a part of such train, and no such duty is imposed by the common law, unless ordinary care would require that such action be taken * * * The primary purpose of signals, gates, other devices, and of watchmen when required to be maintained at points where railroad tracks intersect highways, streets, etc., is to warn persons traveling on and over such ways that a train is approaching, and to protect them from damage or injury likely to ensue, if they attempt to use such crossing before the train passes thereover. Common knowledge and experience is sufficient to warn that the crossing cannot be used when already occupied, and the law does not require that information be given of an existing fact that ordinary observation will disclose. Pennsylvania Railroad Co. v. Huss, 1932, 96 Ind.App. 71, 78, 180 N.E. 919, 921.'

See also New York Central R. Co. v. Powell (1943), 221 Ind. 321, 47 N.E.2d 615.

The majority rule is given in 24 A.L.R.2d 1169, 1170:

'The doctrine prevailing in most jurisdictions, as the later cases show, is that where there is evidence that the particular crossing, either because of its more or less permanent features or because of circumstances existing and affecting its use at the given time, was more than ordinarily hazardous, a question for the jury or the trier of facts is usually presented as to whether or not reasonable care on the part of the railroad required it to provide a flagman to warn of approaching trains.

'On the other hand, in the absence of evidence of more than ordinary hazard attending public use of the crossing, there is, according to the doctrine generally laid down, no basis for the contention that the railroad company was under any duty to provide a flagman.'

Indiana has within the last few years showed a tendency to move away from the strict adherence to the minority view and toward the modern view. In Budkiewicz v. Elgin, Joliet, and Eastern Ry. Co. (1958), 238 Ind. 535, 150 N.E.2d 897, this Court stated the general rule that a driver of a car is not bound under an absolute rule to see every object of danger in or on the highway and could therefore recover from the railroad for damages incurred when a vehicle driven by him collided with a 'cut of cars' standing on the railroad where it intersected the public highway. The concurring opinion construed the decision as placing railroads under the same duty to...