Heiny v. Pennsylvania R. Co.

• Decision Date: 19 March 1943
• Docket Number: 27828.
• Citation: 47 N.E.2d 145,221 Ind. 367
• Parties: HEINY v. PENNSYLVANIA R. CO. et al.
• Court: Indiana Supreme Court

47 N.E.2d 145

221 Ind. 367

HEINY v. PENNSYLVANIA R. CO. et al.

No. 27828.

Supreme Court of Indiana

March 19, 1943

Appeal from Howard Circuit Court; Don P. Strode, Special judge.

Landis & Hanna, of Logansport, for appellant.

Arthur & Tuberty, of Logansport, McClure & Shenk, of Kokomo and Harker & Irwin, of Frankfort, for appellees.

SHAKE Judge.

This is an action for the alleged wrongful death of Harry Heiny resulting from a collision between a truck which he was driving and a locomotive operated by the appellees over a highway crossing. At the conclusion of all the evidence, the trial court instructed the jury to return a verdict for the defendants. The giving of this instruction is the only error relied upon by the appellant.

One of the charges of negligence contained in the complaint was that the appellees failed to give the signals required by §§ 55-1243, 55-1244, Burns' 1933, §§ 14557, 14558 Baldwin's 1934, as the train approached the crossing. It is conceded that there was evidence to sustain this charge, but the appellees assert that it affirmatively appeared that the plaintiff was guilty of contributory negligence as a matter of law.

The appellees rely upon a statute, in effect at the time of the accident, which provided: 'It shall be unlawful for any person, when transporting any explosive or highly inflammable material, substance or liquid, by means of a motor or other vehicle, on or along any public highway which crosses any steam or interurban railroad, to cross or drive upon the track or tracks of such railroad unless such person shall first bring such vehicle to a full stop, and, shall ascertain definitely that no train, car or engine is approaching such crossing and is in such close proximity thereto as to create a hazard or danger of a collision. The provisions of this act shall not apply to railroad crossings which are equipped with mechanical traffic signals or crossings at which flagmen are stationed.' Acts 1937, Ch. 241, § 1, p. 1161, § 10-1909, Burns' 1933 (Supp.), § 2976-1, Baldwin's 1937 Supp.

There was undisputed evidence that the decedent was operating a motor truck containing gasoline, but no evidence that he did or did not take the steps required by the above statute, before driving upon the crossing. The appellees seek to invoke an application of the doctrine of res ipsa loquitur. They assert that the collision could not have happened without a violation of the statute by the decedent and, therefore, that the fact of the occurrence conclusively established contributory negligence as a matter of law. This appears to be the theory upon which the verdict was directed against the appellant. In overruling the motion for a new trial the judge rendered a written opinion in which he said: 'If we assume that Mr. Heiny exercised the highest degree of care before he attempted to cross the railroad track and that he did everything that a reasonably, careful and prudent man would have done under the circumstances, then existing, even that, in my opinion, would not be equivalent to his having definitely ascertained that there was no hazard or danger of a collision before he attempted to cross, the Statute requiring him to be absolutely sure. In other words, he was required to know that there was no danger of a collision * * *. It is self-evident that if he had complied with the Statute, there would have been no collision regardless of what the railroad company did. I am, therefore, forced to the conclusion as a matter of law, that Mr. Heiny was guilty of contributory negligence * * *.'

We recognize, of course, that the question before us is whether the direction of the verdict was justified, and that we are not limited to a review of the considerations that moved the trial court. The opinion of the presiding judge is quoted merely to show the theory which the court below adopted and upon which the appellees rely.

The appellees' theory with respect to the construction and application of the statute upon which they rely will first be considered. The troublesome part of the act is the provision that undertakes to impose upon the operator of a motor vehicle transporting explosives or highly inflammable substances, the unconditional burden to 'ascertain definitely that no train, car or engine is approaching * * * in such close proximity * * * as to create a hazard or danger of a collision,' before going upon a railroad or interurban track at a public highway crossing. Under a strict interpretation of the act, the operator of such a vehicle is, in effect, an insurer of his own safety. He may not place any dependence upon the observance of the statutes requiring headlights on moving locomotives in the nighttime, or the giving of required signals as such instrumentalities approach highway crossings. The impracticability of imposing such burdens upon the operator are well illustrated by the observations of Mr. Justice Cardozo in the case of Pokora v. Wabash R. Co., 1934, 292 U.S. 98, 54 S.Ct. 580, 78 L.Ed. 1149, 91 A.L.R. 1049. See also the editorial comment at the conclusion of the annotation in 56 A.L.R. 654, 655.

That it was within the purview of the legislature to make it a public offense for operators of motor vehicles to transport inflammables and explosives over railroad crossings without exercising more than ordinary care cannot be doubted. Whether such a violation constitutes contributory negligence as a matter of law is quite another matter. In this state we recognize no degrees of actionable negligence other than that which results...