Chicago, T.H.&S.E. Ry. Co. v. Barnes
| Citation | 119 N.E. 26,68 Ind.App. 354 |
| Decision Date | 19 March 1918 |
| Docket Number | No. 9492.,9492. |
| Court | Court of Appeals of Indiana |
| Parties | CHICAGO, T. H. & S. E. RY. CO. v. BARNES. |
OPINION TEXT STARTS HERE
Appeal from Superior Court, Vigo County; Fred W. Beal, Judge.
Action by Mary C. Barnes, by William Barnes, her next friend, against the Chicago, Terre Haute & Southeastern Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.William F. Peter, of Chicago, Ill., and Beasley, Douthitt, Crawford & Beasley, of Terre Haute, for appellant. Walker & Blankenbaker, of Terre Haute, for appellee.
In the western edge of the town of Lewis, Vigo county, a public highway extends north and south. Appellant's single track railroad extends through the town intersecting the public highway practically at grade, the direction of the former at the point of intersection, and for some distance northwestward therefrom, being north 35 degrees west. On September 23, 1913, at about 5 o'clock p. m., appellee, a child ten years old, while walking south along the highway attempted to cross appellant's track, whereupon she was struck by one of appellant's trains southward bound, and was thereby seriously injured. She by her next friend brought this action to recover damages on account of such injuries. A trial resulted in a verdict for $1,200, upon which judgment was rendered.
[1] Appellant urges that the complaint contains no sufficient averment of negligence or of proximate cause, and that the complaint affirmatively discloses that appellee was guilty of contributory negligence, and that as a consequence the court erred in overruling the demurrer filed thereto. The substance of the charge of negligence, which is repeated in various forms, is that the appellant negligently caused a train to approach and pass over the crossing without ringing the bell or blowing the whistle, and negligently ran the train against appellee without giving any notice or warning of its approach. The complaint discloses that appellee lived south of the intersection, and that she was traveling the highway for the purpose of going to her home. It follows that she was lawfully using the highway. Appellant therefore in operating the train towards and over the crossing owed her the duty to exercise reasonable care for her safety. Under such circumstances the general charge of negligence is sufficient as against demurrer. Indiana Union Traction Co. v. Hiatt, 114 N. E. 478, and cases. On the subject of proximate cause it is sufficiently alleged in substance that appellee suffered her injuries by reason of the negligence charged.
[2][3] In an action to recover damages for a personal injury suffered through the negligence of the defendant, it is not necessary to the sufficiency of the complaint that it contain an allegation of the plaintiff's freedom from contributory fault. Section 362, Burns 1914; Indiana Traction Co. v. Reynolds, 176 Ind. 263, 95 N. E. 584. In such a case it is necessary only that the complaint shall not affirmatively show that the plaintiff was guilty of contributory negligence. Chicago, etc., Co. v. Coon, 48 Ind. App. 675, 93 N. E. 561, 95 N. E. 596. Since in such an action a plaintiff is not required to negative his own contributory fault, the inferences on that subject, which may be legitimately deduced from the facts alleged, should be indulged in his favor. In such a case a court may not as a matter of law hold that a complaint discloses contributory negligence, unless the facts alleged compel such an inference. Greenawaldt v. Lake Shore, etc., Co., 165 Ind. 219, 74 N. E. 1081;Cleveland, etc., Co. v. Lynn. 171 Ind. 589, 85 N. E. 999, 86 N. E. 1017. There is no general averment in the complaint that appellee was free from fault contributing to her injury. The facts alleged, which may be said to bear somewhat on that question, are to the effect that certain buildings, trees, etc., obstructed appellee's view, and prevented her from detecting the approach of the train prior to the time when she was struck as aforesaid; that the train approached without warning; that had the bell been ringing, or the whistle sounded, appellee would have heard such signal and kept off the crossing; and that appellee was a child only ten years old. Measured by the principles above outlined, it does not appear affirmatively that appellee was guilty of contributory negligence. There was no error in overruling the demurrer to the complaint.
[4] Appellee did not testify as a witness while presenting her case in chief. After the close of appellant's evidence the court permitted her to testify respecting her movements and conduct until just before she was struck by the train. It is urged that the court thereby erred. Doubtless the course of procedure outlined by subdivision 3 of section 558, Burns 1914, should as a rule be followed. However, it is within the discretion of the trial court to permit a party to introduce further evidence after he or his adversary has closed his case in chief, and the action of the trial court in this respect will not be reviewed on appeal, except where it clearly appears that such discretionary power has been abused. Miller v. Dill, 149 Ind. 326, 49 N. E. 272;Holmes v. Hinkle, 63 Ind. 518;Stewart v. Stewart, 28 Ind. App. 378, 62 N. E. 1023;Noblesville, etc., Co. v. Teter, 1 Ind. App. 322, 27 N. E. 635; 38 Cyc. 1363 et seq. It does not appear here that appellant was prejudiced by the action of the court, or that there was any abuse of discretion. Moreover, it may be said that most, if not all, of appellee's testimony as a witness bore upon the issue of contributory negligence, respecting which appellant had the burden. She had a right after appellant had closed its case to offer evidence bearing on that question meeting testimony offered by appellant. Doubtless the court would have accorded to appellant the right and privilege of rebutting appellee's testimony if desired.
[5] Appellee challenges the sufficiency of the evidence in its relation to the issue of contributory negligence. The physical surroundings were as follows: The highway extended north and south. The railroad was elevated about a foot, and extended north 35 degrees west. Both the highway and the railroad approached the intersection on a down grade from the northward. The latter was straight from the intersection for about one mile to the northwest. There were slight elevations and depressions in the track within that distance, however. On the west side of the highway and north of the crossing there was a row of houses; the nearest, the Foreman dwelling was about 165 feet from the track. About 180 feet up the track and within 8 feet of it on the northeast side there was a hand-car house, 14 feet square and 10 feet high. West of the Foreman house there was a barn, and south and west of it there were outbuildings, trees, grapevines, etc., which obstructed the view of the track to a person looking from the highway between the house and the carhouse. East and southeast of the carhouse there were other trees. Along the west side of the highway a picket fence extended south to the north line of the right of way, and thence a distance of about 50 feet there was a wire fence, and next to the railroad there was a cattle guard fence made of horizontal boards, with 8-inch spaces between them. A foot path, commonly used by pedestrians, extended south along the west side of the highway and near the fence. It was depressed somewhat below the surface of the surrounding ground. The path angled southeast near the track, and thence along and between the rails to the center of the road, and thence southeast and south along the east side of the highway. The station at Lewis is southeast of the crossing.
The train did not sound the crossing signal for the crossing here. There was some conflict in the evidence whether the whistle was sounded for the station, and whether the bell was ringing at the time of and prior to the accident. The train coasted down the grade towards the crossing at the rate of 20 miles per hour. The power was shut off, and it made but little noise. About 150 feet from the crossing, and apparently when the engineer discovered appellee, the danger signal was sounded. Very quickly thereafter appellee was struck and knocked from the track. Appellee approached the track along the path. There was some evidence that she was running, and other evidence that she was walking, and still other evidence that she was walking until she neared the track, and that she then ran along and angling across it, until struck near the southwest rail. Immediately after the danger signal was given, a witness who was near the depot ran towards her waving his hat. The engineer testified that appellee was in a falling position before she was struck. To a person travelling along the footpath, the view is practically unobstructed up the track as far as the carhouse. There was substantial evidence that at all points along the path until the observer was near the track the view beyond the carhouse was almost completely obstructed. Some time after the accident the carhouse was removed and some of the obstructing trees on Foreman's premises cut down. There was evidence based on observations made after the removal of the carhouse, but allowing for its presence, that a person standing in the path at the north line of the right of way could see up the track 217 feet, and from a point 25 feet from the north rail 634 feet, and from a point 15 feet from the north rail practically a mile.
Appellee's account of the transaction was as follows: After school she went direct to the home of certain relatives living north of the crossing on an errand for her mother. In returning she came along the path; nearing the track she stood on tiptoe and peeked through the fence to see if a train was coming. Not seeing or hearing a train, she went on, as she said, past the railroad, and saw a man running towards her waving his hat. She testified...
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