Oleson v. Lake Shore & M. R. Co.

• Decision Date: 23 January 1896
• Citation: 42 N.E. 736,143 Ind. 405
• Parties: OLESON v. LAKE SHORE & M. R. CO.
• Court: Indiana Supreme Court

143 Ind. 405

42 N.E. 736

OLESON

v.LAKE SHORE & M. R. CO.

Supreme Court of Indiana.

Jan. 23, 1896.

Appeal from circuit court, Porter county; John H. Gillett, Judge.

Action by August Oleson against Lake Shore & Michigan Railroad Company for personal injuries. Judgment was rendered for defendant, and plaintiff appeals. Affirmed.

John B. Peterson, for appellant. Baker & Miller, Geo. C. Greene, and O. G. Getzen, for appellee.

MONKS, J.

This action was brought by appellant to recover damages for an injury received while attempting to cross appellee's railroad track at a grade crossing. There was a general denial to the complaint, and trial by jury. After appellannt had introduced all his evidence, and rested his case, the jury, by direction of the court, on motion of appellee, returned a verdict for appellee. The court thereupon, over a motion for a new trial, rendered judgment against appellant. The only question presented is, did the court err in instructing the jury to find for appellee? This instruction was given on the ground stated therein,-that the appellant had not shown that he was free from contributorynegligence. Appellant contends that the evidence was such that the question of whether or not appellant was guilty of contributory negligence should have been submitted to the jury. The determination of the question presented requires an examination of the evidence. The only evidence given was the testimony of plaintiff, and upon his statements the case must be determined.

It appears from the evidence: That at Miller's Station, where the injury occurred, the railroad tracks of appellee run east and west. That at the time of the injury, and for several years prior thereto, there were two main tracks. The north track was used by trains going east, and the south track by trains going west. There was a highway running north and south, which crossed these tracks. That running east from this highway was another highway, immediately south, and adjoining the right of way of appellee. That the right of way of appellee is 100 feet wide. That appellant had lived a number of years within 150 feet of this highway crossing, had crossed it often, and was thoroughly familiar with the method of running trains upon these two main tracks. He knew that the north track was for east-bound trains, and the south track was for west-bound trains, and that freight and passenger trains passed each other frequently at this point. Immediately before the accident, appellant was going west upon the east and west highway, south of the tracks; driving one horse, attached to a light wagon, upon which there were three or four dump boards, upon which he was sitting sideways, between the wheels of the wagon, with his face to the south and his back to the tracks. As he turned north, in the highway running north and south, he faced to the north, and looked both ways, east and west, and saw a freight train coming from the west, going east on the north track. He stopped about 40 feet from the south track to wait for this east-bound train to pass. When he stopped he looked to the east, and saw nothing. When he stopped, the east-bound train, on the north track, was west of the depot, and about 400 feet west of the crossing. The day was somewhat dark and overcast, atmosphere heavy, and the clouds obscured the sun, and appellant could not see over one-half mile, to distinguish objects. The wind was blowing from the northeast to the southwest. The east-bound train, on the north track, was going at about the rate of 15 miles per hour, and was throwing out large volumes of dense, black smoke, which fell to the ground on the south side of the train, or between the train and appellant, as it passed the highway crossing and proceeded east, and continued to throw out smoke as it proceeded east until after the accident; and the dense, black smoke obscured the view on the south track east of the crossing. There were about 30 cars in the eastbound train, and the train was about 900 feet in length. After the caboose at the rear of the east-bound train had passed the crossing about two or three rail lengths, appellant, who had remained sitting upon his wagon when it had stopped, started his horse, and drove upon the crossing. Just before he started his horse he looked to the east and west, and listened, but he could not see to the east, along the south track, but a short distance, on account of the smoke which had been thrown from the engine drawing the east-bound train. At the time appellant started his horse, the wind was clearing away the smoke, and to the west of the crossing it had almost disappeared, and appellant could see to the east about 100 feet. As his horse stepped upon the track, appellant, who was, and had been from the time he started, looking east for a train, saw an engine and train of cars about 100 feet away, approaching him from the east, on the south track, at the rate of 10 or 15 miles per hour. He whipped his horse with the lines, and endeavored to pass in front of the engine, but the rear wheel of the wagon was struck by the train, and appellant injured. Appellee's servants on the train which struck appellant did not sound the whistle or ring the bell while approaching said crossing. From the point where appellant stopped, about 40 feet south of the south track, he could see, except for the smoke, a distance of at least one-half mile eastward along the south main track; and there was no smoke to obscure this view to the east, along the south main track, until the engine in front of the east-bound train, on the north main track, passed upon said crossing. There were no intervening objects or obstructions, except a wire fence and telegraph poles.

It is thoroughly settled that if the facts are undisputed, and only one inference can reasonably be drawn from them, the question whether there is or is not contributory negligence is one of law, for the court. Korrady v. Railway Co., 131 Ind. 262, 29 N. E. 1069;Rogers v. Leyden, 127 Ind. 50, 26 N. E. 210, and cases cited; Board v. Chipps, 131 Ind. 56, 29 N. E. 1066. But if the facts are disputed, or whenever there may reasonably be a difference of opinion as to the inferences and conclusions from the facts, it is a question for the jury. Rogers v. Leyden, supra. We think it is also correct doctrine that where the evidence given at the trial, with all the inferences which the jury may justifiably draw from it, is insufficient to support a verdict for the plaintiff, so that such verdict, if returned, should be set aside, the court is not bound to submit the case to the jury, but may direct a verdict for the defendant. Weis v. City of Madison, 75 Ind. 254, and cases cited; Faris v. Hoberg, 134 Ind. 269, 272-274, 33 N. E. 1028;Railway Co. v. Dunn, 138 Ind. 18, 27, 36 N. E. 702, and 37 N. E. 546;Sharpe v. Association, 139 Ind. 92, 95, 37 N. E. 353; Railroad Co. v. Houston, 95 U. S. 697, 50 Am. Rep. 653-656;Scofield v. Railway Co., 114 U. S. 615, 5 Sup. Ct. 1125;Improvement Co. v. Stead, 95 U. S. 161;Baylis v. Insurance Co., 113 U. S. 316, 5 Sup. Ct. 494;Improvement Co. v. Munson, 14 Wall. 442;Southern Pac. Co. v. Pool, 16 Sup. Ct. 338; Thomp. Trials, §§ 2249, 2250, 2262; Elliott, Gen. Prac. §§ 876, 889; 11 Am. & Eng. Enc. Law, § 3, pp. 243-246. The rule is thus stated by Judge Elliott in his General Practice (section 889): “The test for determining when the case should be taken from the jury is substantially the same as upon a motion for a nonsuit, and when a verdict, if against the party seeking to have the case taken from the jury, would have to be set aside, as contrary to the law and the evidence, a verdict in his favor should be directed, upon proper application. * * * The doctrine once prevailed in many jurisdictions that whenever there is any evidence, however slight, tending to support a material issue, the case must go to the jury, and this rule is still applied in some states; but the modern decisions have established a more reasonable rule, to wit, that before the evidence is left to the jury there is, or may be, in every case, a preliminary question for the judge,-not whether there is literally no evidence, but whether there is any upon which a jury can properly proceed to find a verdict for the party producing it, upon whom the burden of proof is imposed. Of course, if there is no evidence whatever upon a material and necessary point, a verdict should be directed, upon proper application, against the party having the burden of proof; and, as we have seen, this is the better rule, also, when the evidence, with all legitimate inferences, will not support a verdict.” It is settled law in this state that, when a person crossing a railroad is injured by a collision with a train, the fault is prima facie his own, and he must affirmatively show that his fault or negligence did not contribute to the injury, before he is entitled to recover for such injury. Smith v. Railroad Co. (Ind. Sup.) 40 N. E. 270, and cases cited; Railroad Co. v. Duncan (Ind. Sup.) 42 N. E. 37, and cases cited. It is essential to appellant's right to recover that he aver and prove that he was free from negligence proximately causing his injury. Railroad Co. v. Duncan (Ind. Sup.) 42 N. E. 37, and cases cited; Smith v. Railroad Co. (Ind. Sup.) 40 N. E. 270, and cases cited; Railway Co. v. Howard, 124 Ind. 280, 284, 24 N. E. 892;Mann v. Stock-Yard Co., 128 Ind. 138, 26 N. E. 819, and cases cited; Pennsylvania Co. v. Meyers, 136 Ind. 242, 36 N. E. 32, and cases cited. If he failed to prove this essential and indispensable element of his cause of action, it was the duty of the trial court to instruct the jury to find against him, even though he established all the other essential facts of his cause of action. Railroad Co. v. Duncan, supra, and cases cited; Chase v. Railroad Co., 77 Me. 62. It is settled law in this jurisdiction that, when one approaches a point where a highway crosses a railroad track on...