Mann v. The Belt Railroad & Stock Yard Co.

Citation26 N.E. 819,128 Ind. 138
Decision Date18 February 1891
Docket Number14,077
PartiesMann v. The Belt Railroad and Stock Yard Company
CourtSupreme Court of Indiana

Petition for a Rehearing Overruled May 14, 1891.

From the Marion Superior Court.

The judgment is affirmed.

B Harrison, W. H. H. Miller, J. B. Elam, F. Winter and J. P Baker, for appellant.

A. C Harris, A. L. Roache and E. H. Lamme, for appellee.

Coffey, J. Elliott, J., took no part in the decision of this case.

OPINION

Coffey, J.

This action was begun on the 17th day of August, 1882, to recover damages sustained by the appellant in a collision with one of the appellee's trains at a highway crossing.

On a trial of the cause the appellant had judgment. An appeal to this court resulted in a reversal of the judgment, and the cause was remanded to the Marion Superior Court for further proceedings.

The cause was again tried, at special term, resulting in another judgment in favor of the appellant. Upon appeal to the general term the judgment was reversed, upon the ground that the evidence did not support the verdict. From the judgment of the general term, reversing the judgment at special term, this appeal is prosecuted.

The controlling facts in the case are, that, on the 25th day of June, 1882, in the afternoon of Sunday, the appellant, with a friend, was riding on a public highway south of the city of Indianapolis, known as the Churchman Turnpike Road, in an open vehicle drawn by one horse. The road was crossed by the double track of the appellee's road, which, at the point of crossing, runs in a northeasterly and south-westerly direction. The turnpike runs north and south, and is itself crossed at right angles by a street known as Cypress, at a point 316 feet north of the crossing of the turnpike and the appellee's railroad, at the place where the appellant received his injuries. The appellee's railroad crosses Cypress street at a distance of 345 feet east from the center of the turnpike. From the point in Cypress street crossed by the appellee's railroad said road runs southwest, and at a distance of 470 feet intersects the turnpike at the place where the appellant was injured. As the appellant was travelling south on the turnpike, a locomotive and two or three freight cars came down from the northeast, and, as appellant was attempting to cross the track in the vehicle with his friend, the locomotive struck the horse and overturned the vehicle, resulting in serious and permanent injuries to the appellant. At the point where the injury occurred there was a grade of about twenty feet to the mile to the west, the steam was shut off, and the fireman was outside on the locomotive oiling the machinery, which could only be done when the locomotive was in motion.

There is some conflict as to the rate of speed at which the train was running, but we must assume here that the speed was that contended for by the appellant, which is thirty miles an hour. There was no one on the train except the conductor, engineer and fireman. The train as it approached the crossing made but little noise. To the west of the crossing there was a cut a few feet in depth, on the top of which was standing an open board fence, though trains passing through the cut could be seen, while so passing, by persons on the turnpike. Soon after crossing Cypress street, and at a point 250 or 275 feet from the place of the injury, the appellant looked to the east for approaching trains, and did not hear or see any, and thereafter neither he nor his friend looked in that direction, but both looked to the west, the view of which was somewhat obstructed as above stated. To the northeast from the point where they looked to the crossing there were no obstructions, the country being level, affording a free and unobstructed view of the track and along it for a distance northeast of about 1,500 feet east; while at a point about 100 feet from the crossing the track northeast could be seen for nearly one-half mile. The parties drove to the crossing in a slow trot, and did not stop until the collision occurred.

They were familiar with the crossing and had been familiar with it for many years. Those in charge of the train did not blow the whistle or ring the bell. The railroad was not used for travel by passengers, but only for switching and transferring freight trains and empty cars around the city of Indianapolis.

Northeast of the crossing where the injury occurred, the appellee's railroad crosses three other public highways, namely: Cypress street at a distance of 470 feet, Higgins' Branch 309 feet further, and Knox street 420 feet from Higgins' Branch.

To the southwest there were no crossings within three-fourths of a mile.

The appellant knew and was familiar with all the surroundings.

The contention of the appellant, as we understand the argument of counsel in their able brief, is, that under the facts above stated the question of contributory negligence is one for the jury, under proper instructions from the court. In other words, that it was for the court to say what sort of care was required by the appellant in approaching the crossing at which he was injured, but it was for the jury to determine whether he exercised the quantity of care required by the law.

It has often been decided by this court, as well as by all the other courts of last resort in the United States, that there is a class of cases in which the court will adjudge, as matter of law, that a party has or has not, under the given state of facts, been guilty of negligence; while in another class of cases the question of negligence will be left to the jury under proper instructions from the court. Smith Law of Neg., pp. 9-12; Wabash, etc., R. W. Co. v. Locke, 112 Ind. 404, 14 N.E. 391; Evans v. Adams Ex. Co., 122 Ind. 362, 23 N.E. 1039; Directors, etc., v. Jackson, 3 App. Cases H. L. 193; Ohio, etc., R. W. Co. v. Collarn, 73 Ind. 261; Baltimore, etc., R. R. Co. v. Walborn, 127 Ind. 142, 26 N.E. 207; Cincinnati, etc., R. R. Co. v. Butler, 103 Ind. 31, 2 N.E. 138; Chicago, etc., R. W. Co. v. Hedges, 118 Ind. 5, 20 N.E. 530; Indiana, etc., R. W. Co. v. Hammock, 113 Ind. 1, 14 N.E. 737; Schofield v. Chicago, etc., R. W. Co., 114 U.S. 615, 29 L.Ed. 224, 5 S.Ct. 1125; Bellefontaine R. W. Co. v. Hunter, 33 Ind. 335; Indiana, etc., R. W. Co. v. Greene, 106 Ind. 279, 6 N.E. 603.

It is claimed by the appellant that this case falls within the latter class, while on the other hand it is earnestly contended by the appellee that it belongs to the former.

Cases belonging to the first class exist where the facts are undisputed, and the inferences to be drawn from such facts are not equivocal, and lead to but one conclusion, while cases of the second class exist where there is a dispute as to the facts, or where the facts being admitted different inferences can reasonably be drawn from such facts. If such a state of facts exists as that one sensible, impartial man would infer that proper care had not been used, and that negligence existed, while another man equally sensible and equally impartial would infer that proper care had been used, and that there was no negligence, it is said to be the highest effort of the law to obtain the judgment of twelve men of the average of the community, comprising men of learning, men of little education, men whose learning consists only of what they have themselves seen and heard the merchant, mechanic, the farmer and the laborer, as to whether negligence does, or does not, exist in the given case. Such judgment is supposed to be more valuable in such cases than the judgment of a single judge. Railroad Co. v. Stout, 84 U.S. 657, 17 Wall. 657, 21 L.Ed. 745; Ohio, etc., R. W. Co. v. Collarn, supra; Baltimore, etc., R. W. Co. v....

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