Aurelius v. Lake Erie and Western Railroad Company

• Decision Date: 16 March 1898
• Docket Number: 2,382
• Parties: AURELIUS v. LAKE ERIE AND WESTERN RAILROAD COMPANY
• Court: Indiana Appellate Court

49 N.E. 857

19 Ind.App. 584

AURELIUS v. LAKE ERIE AND WESTERN RAILROAD COMPANY

No. 2,382

Court of Appeals of Indiana

March 16, 1898

From the Henry Circuit Court.

Affirmed.

M. E Forkner and Goodykoonts & Ballard, for appellant.

John B Cockrum, W. E. Hackedorn and William A. Brown, for appellee.

OPINION

WILEY J.

Appellant was plaintiff below, and prosecuted this action against appellee for injuries received by her by one of appellee's trains colliding with a buggy in which she was riding. She was in a buggy belonging to and being driven by one Dr. Edwins, and was on her way with him to procure some medicine for a member of her father's family. He had made a professional call at her father's, and she was accompanying him for the purpose of getting the medicine and carrying it home. She was a minor, being about nineteen years old, and resided with her father in the city of Elwood, and upon application to the court she was permitted to prosecute the action as a poor person. The main track of appellee's road passes through the city of Elwood, running due east and west. Anderson street, in said city, is fifty feet wide, running north and south, and crosses appellee's road at right angles. Elwood is a regular station on said road and all passengers trains are scheduled to stop there.

Appellant and Dr. Edwins were driving north on said street. A regular passenger train from the west, on appellee's road was scheduled to arrive at Elwood at nine fifteen o'clock a. m., on the day of the accident, but was five minutes late. Immediately east of said street and adjoining appellee's right of way on the north, in the angle caused by the crossing of the street, appellee maintained its passenger station and depot. In the southwest angle caused by the intersection of the railroad and said street, there was a one story building standing about twenty feet south of the track and about twelve or fifteen feet west of the street, used as a photograph gallery. South from said point said street was built up with buildings and structures, and trees were growing along the sidewalk and upon private grounds so as to obstruct the view and hearing of trains approaching from the west.

The negligence complained of was the alleged careless colliding of appellee's train with the buggy in which she was riding. The complaint is in two paragraphs, but as no question is presented as to the sufficiency of the complaint, it is not necessary to refer to it at any length. It is enough to say that it is charged that appellee's servants in charge of the train, approached said street crossing at a high and dangerous rate of speed, and did not give any signal or warning of its approach by sounding the whistle and ringing the bell. In addition to the general averments of negligence, the second paragraph charges that the engineer in charge of the engine drawing the train, saw appellant's perilous and dangerous position in time to have reversed his engine, and averted the injury, but failed to do so; but upon this point the controversy is put at rest by the express finding of the jury to the contrary. The complaint contains the averment that the appellant and Dr. Edwins, when approaching the crossing, stopped and listened to ascertain if any train was approaching; that they were both in possession of the senses of sight and hearing; that again within about sixty-five feet of the track, Dr. Edwins again checked his horse and stopped, and he and appellant carefully looked and listened, but they did not see or hear any train, and that they started to cross the track when the injury occurred. The complaint contains the necessary averment that the injury resulted without any fault or negligence of appellant or of Dr. Edwins.

The appellee answered by general denial, trial by jury, and a special verdict returned. Each of the parties moved for judgment on the verdict. Appellant's motion was overruled and appellee's sustained. The record shows that appellant tendered certain interrogatories to the court, which she requested the court to submit to the jury as a part of the special verdict, which it refused to do, and embodied the same in a bill of exceptions. The rulings of the court on the respective motions for judgment, and its refusal to submit the interrogatories tendered, are assigned as errors.

The negligence charged against the appellee is fully sustained by the verdict. It is shown that Elwood is a populous city, and that in approaching the crossing at Anderson street, appellee's servants did not give the signals as required by statute, and no warning whatever, except to whistle for the station, about half a mile west of it. The verdict shows that when the train approached the crossing it was running about eight miles an hour. It is unnecessary to set out the facts as found in the verdict, touching the negligence of the appellee, further than to say that to run a locomotive and train of cars across a public street in a populous city without sounding the whistle or ringing the bell, and without giving any warning of its approach, is negligence on the part of those operating the train, and this is what the verdict shows was done. See Lake Shore, etc., R. W. Co. v. Boyts, 16 Ind.App. 640, 45 N.E. 812, and cases there cited.

On the question of appellant's freedom from negligence the pivitol facts as found by the jury, reduced to narrative form, are as follows: That the plaintiff's mother sent her with Dr. Edwins to get some medicine for her sick brother; that she was riding with him in a top buggy with the top up and the curtains on; the horse and buggy were the property of Dr. Edwins; that the horse was a spirited animal, afraid of cars, and that Dr. Edwins was a prudent, safe, and skilful driver; that the appellant and Dr. Edwins were both possessed with good hearing and eyesight; that they drove onto Anderson street from D street, which runs east and west; that Anderson street runs north and south; that when they turned into Anderson street, at a point about 270 feet south of the railway track, they stopped the horse and looked and listened for a train; that after they so stopped, they drove on toward the railway in a trot, without stopping, looking or listening, until they reached a point twenty feet south of a photograph gallery which stood on the west side of Anderson street, the south side of which was about forty-four feet from the center of the track, and which stood about twenty-two feet west of the west line of said street; that at the latter point, being about sixty-five feet south of the track, they again stopped, looked and listened, but did not see or hear a train; that appellant was well acquainted with the comparative location of Anderson street and the railway where they crossed and the territory and surroundings thereof; that along Anderson street, on the west side thereof, and opposite to where appellant was riding, there were houses, buildings, and trees, which obstructed the view of trains approaching from the west, and that appellant was familiar with such obstructions; that on account of such obstructions appellant could not see a train approaching from the west; that the appellant did not stop twenty-five feet south of the track to look and listen for a train, and that if she had so stopped, she could, if she had looked, have seen the train approaching from the west 700 or 800 feet; that she did not request Dr. Edwins to stop within twenty-five feet of the track; that if she had stopped within twenty feet of the track, and looked she could have seen a train approaching from the west about 12,000 feet; that she did not request Dr. Edwins to stop within said distance, and that she did not request him to stop the buggy at any point on Anderson street where it was possible for her to see or hear the approaching train, nor say anything to him about stopping it; that she was about nineteen years old, of average intelligence, education, and capacity, with good eyesight and hearing; that if she had stopped, listened, and looked within twenty-five feet of the track as she was approaching it, she could have heard and seen the train in time to have avoided the accident; that the train was running about eight miles an hour; that said train was due to arrive at the station at 9:15 a. m., but did not arrive until 9:20 a. m.; that as she was approaching the track, appellee's station was in plain view, and a number of persons were standing on the platform gesticulating, and were endeavoring by signs and motions to warn her of the impending danger, and that she could have seen them so gesticulating, etc., if she had looked; that appellant was driving about five miles per hour as she approached the track; that when appellant and Dr. Edwins were within twenty-five feet of the track, the train was about forty-five feet west of Anderson street; that if she had stopped within twenty feet of the track she could have heard the train, if she had listened; that at said point there were no obstructions to prevent seeing a train approaching from the west for a distance of 12,000 feet; that immediately before the accident appellant was looking neither to the east or west for an approaching train; that she did not look to the west at any time after she reached a point where the train could have been seen; that after appellant and Dr. Edwins had stopped in front of the photograph gallery as above described, the Doctor proceeded to drive toward appellee's railroad track in a "jog-trot." The jury further found that appellant did not have any control over the horse while she was riding with Dr. Edwins. Upon these facts, the trial court declared the law to be with the appellee, and rendered judgment in its favor for costs.

As a question of law upon these facts, the...