Chicago, I.&L. Ry. Co. v. Turner

• Decision Date: 13 January 1904
• Citation: 69 N.E. 484,33 Ind.App. 264
• Parties: CHICAGO, I. & L. RY. CO. v. TURNER.
• Court: Indiana Appellate Court

33 Ind.App. 264

69 N.E. 484

CHICAGO, I. & L. RY. CO.

v.TURNER.^*

Appellate Court of Indiana, Division No. 2.

Jan. 13, 1904.

Appeal from Circuit Court, Harrison County; C. W. Cook, Judge.

Action by Mary E. Turner, administratrix, against the Chicago, Indianapolis & Louisville Railway Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

E. C. Field and H. R. Kurrie, for appellant. E. B. Stotsenburg, J. H. Weathers, and A. C. Harris, for appellee.

ROBY, J.

The appellee administratrix sued appellant for damages on account of the death of her husband. The averment in her complaint is that decedent was crossing appellant's railroad at a highway crossing; that the crossing was enveloped in a dense fog; that before going on the track decedent stopped, looked, and listened, and neither saw nor heard a train; that while he was on the crossing a train was run over it at 50 miles an hour, without warning of its approach, and decedent was thereby killed. Answer in general denial. Trial; verdict for $6,000, with answers to interrogatories. Motion by appellant for judgment thereon notwithstanding the general verdict, or motion for new trial, or judgment on the verdict.

The facts found are that decedent was killed by collision between the wagon in which he was riding and one of appellant's engines, about 7:20 a. m., September 16, 1901, at a public crossing of the Grant Line Road, near New Albany, the direction of the highway at that point being north and south and of the railway northwest and southeast. At the time of the collision decedent was riding in an ordinary farm wagon drawn by two horses, making little noise, and driven south by him. The horses were gentle, and not afraid of cars. Decedent was alone; had lived near the railroad track, three miles distant from the crossing, for 11 years; was familiar with the crossing and vicinity, having used it about three times a week. He left home about 6:30 or 7 o'clock, and drove to the point where he was killed. Had driven two miles on the Grant Line Road, and had crossed the track two miles north, driving thence south along said road to the place of accident. The train was a through passenger, running southeast, at from 40 to 50 miles an hour. The whistle was not sounded nor the bell rung between 80 and 100 rods from the crossing. The whistle was last sounded two to four miles away. Decedent did not hear it. When he was 326 feet north of the point of collision, if he had attentively listened, he could have heard the whistle. While approaching said crossing he continuously looked and listened for the approach of trains from a point 240 feet from the crossing. He drove in a walk at two to three miles an hour. He stopped, looked, and listened both ways 30 feet from the track. He looked and listened from such point in both directions until he reached the track. He could not have heard the noise made by the train by attentively listening while 326 feet from the crossing, while approaching it, or just before driving on the track. When he was 30 to 34 feet from the track the train was 80 yards from the crossing. When he was 15 to 17 feet from the track the train was 40 yards away. He had good eyesight and hearing, and knew that a train was due to pass over the track at about 9 o'clock each morning. His three children followed immediately after him in a buggy, about five feet behind him. The noise of the buggy and wagon did not prevent him from hearing the train. The highway and railroad were practically level. It was very foggy at the time of the collision. The fog was so dense that decedent was unable to see the train. It extended more than one-half a mile each way from the crossing, and prevented him seeing the train until it was too late to prevent the accident. He could not have seen the train or headlight just before driving on the truck by looking in its direction. The crossing was in a farming neighborhood. The train was regularly run at a high rate of speed. There were no noises to hinder hearing the train, except the noise of the wagon and buggy. If decedent had got out of his wagon, and gone to appellant's track, and carefully listened, he could have heard the approaching train in time to have avoided the accident. The train was from 15 to 20 minutes late. Decedent was riding in the front seat of an open wagon. The train made very little noise. It was running down grade on wet rails. No warning was given of its approach. The heavy fog, the absence of noise and signal prevented decedent from seeing or hearing it until it was within 50 feet of him. He continuously looked and listened up to the crossing.

The appellant asserts the following proposition: “The fact that a collision did occur shows that sufficient precaution was not taken” (by decedent). It is said-and the following cases are cited to the point; “The law presumes, in case of injury of a traveler at a crossing, that if, by looking he could have seen, or by attentively listening he could have heard, the approaching train in time to escape, either that he did not look and listen, or that he did not heed what he saw or heard; that he saw what he could have seen had he looked, and heard what he could have heard had he listened.” Railway Co. v. Griffin, 26 Ind. App. 368-370, 58 N. E. 503; Railway Co. v. Stick, 143 Ind. 449, 41 N. E. 365;Aurelius v. Ry. Co., 19 Ind. App. 584, 49 N. E. 857;Railway Co. v. Fraze, 150 Ind. 576, 50 N. E. 576, 65 Am. St. Rep. 377;Towers v. Ry. Co., 18 Ind. App. 684, 48 N. E. 1046; Railway Co. v. Duncan, 143 Ind. 524, 42 N. E. 37;Smith v. Ry. Co., 141 Ind. 92, 40 N. E. 270; Railway Co. v. Butler, 103 Ind. 31, 2 N. E. 138. The logic of appellant's position, in connection with the legal proposition stated, is that, inasmuch as no case can be conceived in which the traveler cannot see and hear an approaching train if he stops long enough and listens sharply enough, therefore the fact that he is struck by such train establishes his contributory negligence. The correctness of the conclusion cannot be conceded. The appellant was entitled to have the jury instructed not only generally, but specifically, as to the exercise of reasonable care by decedent. Malott v. Hawkins (Ind. Sup.) 63 N. E. 308. The precise number of feet from the crossing at which he should have stopped cannot be...