Smith v. Chesapeake & Ohio R. Co.

• Decision Date: 30 May 1974
• Docket Number: No. 3--1272A102,3--1272A102
• Parties: Alfred C. SMITH, Appellant, v. The CHESAPEAKE AND OHIO RAILROAD COMPANY, Appellee.
• Court: Indiana Appellate Court

Page 462

311 N.E.2d 462

160 Ind.App. 256

Alfred C. SMITH, Appellant, v. The CHESAPEAKE AND OHIO RAILROAD COMPANY, Appellee.

No. 3--1272A102.

Court of Appeals of Indiana, First District.

May 30, 1974.

Rehearing Denied July 2, 1974.

Robert D. Hawk, Robert P. Kennedy, Gary, for appellant; Spangler, Jennings, Spangler & Dougherty, Gary, of counsel.

Russel J. Wildman, Peru, for appellee.

LYBROOK, Judge.

The sole issue in this appeal is whether the trial court erred in granting defendant appellee's motion for judgment on the evidence in plaintiff-appellant's action to recover damages for personal injuries sustained in a collision between a train and a tractor trailer unit.

The collision in question occurred on January 28, 1966, where the tracks of defendant-appellee Chesapeake and Ohio Railroad Company cross highway U.S. 30 near Hanna, Indiana in LaPorte County. The highway is a divided four lane road, and the crossing is protected by warning flashers.

The truck approached the crossing from a westerly direction, travelling approximately 40 to 50 miles per hour. Defendant's train approached the crossing from a southerly direction. Having previously completed a switching movement south of the crossing, it was accelerating and had reached a speed estimated at 10 to 18 miles per hour at the time of impact.

The truck left the highway 151 feet west of the crossing and the point of impact occurred 20 feet south of the eastbound lanes of the highway. The truck struck the train's first box car, which was preceded by two engine units. Apparently, neither the truck nor the train braked or slowed prior to impact.

Plaintiff-appellant Smith, a passenger in the cab of the truck, was sleeping at the time of the collision. The driver of the truck died from injuries sustained in the collision.

I.

Initially, appellee argues that this cause should be affirmed due to alleged defects in appellant's brief and the record of the proceedings.

Appellee first submits that the record of the proceedings is inadequate since appellant's Motion to Correct Errors is not separately certified. However, appellee's reliance upon Thonert v. Daenell (1970), 148 Ind.App. 70, 263 N.E.2d 749, in support of this proposition is misplaced. In State Board of Tax Commissioners v. Associated Auto & Truck Rental, Inc. (1971), 148 Ind.App. 611, 268 N.E.2d 626, Thonert was overruled to the extent of its interpretation of Ind. Rules of Procedure, Appellate Rule 7.2(A)(1)(a) as requiring separate certification of the Motion to Correct Errors.

Appellee next argues that appellant's brief fails to meet several of the requirements of Ind. Rules of Procedure, Appellate Rule 8.3. Our attention is first directed to appellant's failure to include a verbatim statement of the court's judgment under the statement of the case. However, this defect is not fatal. It has been held that omission of the judgment does not necessarily mandate affirmance, especially where the relief granted or denied is basic and uncomplicated and the judgment is self-evident and implicit in the mere fact of the appeal. Suess v. Vogelgesang (1972), Ind.App., 281 N.E.2d 536.

Among the other alleged inadequacies of appellant's brief is the failure to set forth all of the facts relevant to the issues on appeal. With respect to this contention, we note that appellee has in its brief set forth a greatly detailed summary of the facts which we have found most helpful in considering the merits of this appeal.

This court prefers to decide cases on their merits whenever possible. Thonert, supra. Appellant has substantially complied with the requirements of Rule AP 8.3. We therefore elect to proceed to a determination of the issues presented in this appeal.

II.

At the close of all the evidence, the trial court granted defendant railroad company's motion for judgment on the evidence and directed the jury to return a verdict for the defendant.

Motions for judgment on the evidence are governed by Ind. Rules of Procedure, Trial Rule 50. The scope and application of this rule was examined by this court in Galbreath v. City of Logansport (1972), Ind.App., 279 N.E.2d 578. While recognizing that the language and procedure of TR. 50 differ from its model, Federal Civil Rule 50 (Motion for a Directed Verdict), it was noted that Federal decisions provide appropriate guidance in interpreting our rule. The court then quoted extensively from Swearngin v. Sears Roebuck & Company (10th Cir. 1967), 376 F.2d 637. The quoted material reads, in part:

"A motion for judgment notwithstanding the verdict is actually merely a renewal of a previous motion for a directed verdict as to which the court has reserved decision. Thus the standard is the same for both motions as to when they should be granted. Motions of this kind raise the question whether there is or was any substantial evidence to take the case to the jury. Since, if granted, they deprive the party of a determination of the facts by a jury, they should be cautiously and sparingly granted. The court may not substitute its judgment on a question of fact for that of the jury, nor direct a verdict because the evidence decidedly preponderates for the moving party.

"The propriety of granting or denying a motion for a directed verdict is tested both in the trial court and on appeal by the same rule. The trial court must view the evidence and all inferences most favorably to the party against whom the motion is made. The reviewing court must do the same with respect to a judgment entered on a directed verdict or the denial of a motion for a directed verdict or a judgment entered notwithstanding the verdict. The decisions are many and the rule is the same both on appeal, and on the hearing of the motion in the trial court.' 2B Barron & Holtzoff, Fed.Prac. and Proc., § 1075, at 375, 378 (Rules ed. 1961).' (Our Emphasis.)

It has also been held that the standards for directing a verdict which were developed in case law prior to the enactment of TR. 50 are still applicable. Jordanich v. Gerstbauer (1972), Ind.App., 287 N.E.2d 784. Drawing upon earlier case law, this court in Mamula v. Ford Motor Company (1971), Ind.App., 275 N.E.2d 849, said:

'When passing on a motion for a directed verdict, the court is merely called on to determine if there is some evidence of negligence on the part of the defendant which the jury is entitled to consider. Jones v. Furlong (1951), 121 Ind.App. 279, 97 N.E.2d 369. Where the evidence is such that the minds of reasonable men might differ, or if the determination of negligence depends on conflicting evidence, then the question is for the jury. Hatmaker v. Elgin, Joliet & Eastern Railway Company (1956), 126 Ind.App. 566, 133 N.E.2d 86; Heiny v. Pennsylvania Railroad Company (1943) 221 Ind. 367, 47 N.E.2d 145; Robertson Brothers Department Store v. Stanley (1950), 228 Ind. 372, 90 N.E.2d 809; Haney v. Meyer (1966), 139 Ind.App. 663, 215 N.E.2d 886; Oliver v. Clemons' Estate (1968), 142 Ind.App. 499, 236 N.E.2d 72.

'Therefore, a directed verdict is proper only when the evidence is without conflict and is susceptible of but one inference in favor of the moving party. State Farm Life Ins. Co. v. Spidel (1964), 246 Ind. 458, 202 N.E.2d 886; Gibson v. Froman (1965), 138 Ind.App. 497, 212 N.E.2d 25; Mitchell v. Smith (1965), 138 Ind.App, 93, 211 N.E.2d 809; Reynolds v. Langford (1961), 241 Ind. 431, 172 N.E.2d 867.'

In this appeal, we must therefore determine whether there was any evidence of negligence or a reasonable inference thereof which required submission of the cause to the jury.

III.

IC 1971, 8--6--4--1 (Burns Code Ed.), at the time of the collision, provided:

'It shall be the duty of all railroad companies operating in this state, to have attached to each and every locomotive engine, a whistle and a bell, such as are now in use or may be hereafter used by all well managed railroad companies, and the engineer or other person in charge of, or operating such engine upon the line of any such railroad, shall, when such engine approaches the crossing of any turnpike or other public highway in this state, beginning not less than eighty (80) rods from such crossing, sound the whistle on such engine distinctly not less than three (3) times, which sounding shall be prolonged or repeated until the crossing is reached, and ring the bell attached to such engine continuously from the time of sounding such whistle until such engine shall have fully passed such crossing: Provided, That, nothing herein shall be so construed as to interfere with any ordinance that has been or may hereafter be passed by any city or incorporated town in this state regulating the management or running of such engines or railroad within the limits of such city or incorporated town: Provided, further, That all penalties incurred under the Act of March 29, 1879, are hereby repealed.' (Acts 1943, ch. 208, § 1, p. 618.)

It has been consistently held that the failure of a railroad to comply with the above statutorily prescribed duty constitutes negligence per se. See, Bartley v. Chicago and Eastern Illinois Railway Co. (1939), 216 Ind. 512, 24 L.Ed.2d 405; Callahan v. New York Central Railroad Co. (1955), 125 Ind.App. 631, 125 N.E.2d 263.

Smith argues that there was evidence adduced at trial that the railroad failed to comply with the above statute and, hence, was negligent as a matter of law. Reliance is placed upon the statement and testimony of independent witness Herman Henderson. The evidence reveals that Henderson was travelling west on U.S. 30 and had stopped his automobile at the crossing in obedience to the flashing signal warning of the train's approach. He testified that from the time he saw the warning lights begin to flash until the time the impact occurred, he did not hear a train bell or whistle of any kind. Smith further directs our attention to other testimony that the train's whistle and the crash were heard almost simultaneously.

Appellee railroad...