Chicago, St. L.&P.R. Co. v. Butler

• Decision Date: 19 June 1894
• Citation: 38 N.E. 1,10 Ind.App. 244
• Parties: CHICAGO, ST. L. & P. R. CO. v. BUTLER.
• Court: Indiana Appellate Court

10 Ind.App. 244

38 N.E. 1

CHICAGO, ST. L. & P. R. CO.

v.BUTLER.

Appellate Court of Indiana.

June 19, 1894.

Appeal from circuit court, Henry county; E. H. Bundy, Judge.

Action by Charles M. Butler against the Chicago, St. Louis & Pittsburgh Railroad Company. Plaintiff obtained judgment. Defendant appeals. Modified.

J. H. Mellett and Burchenal & Rupe, for appellant. L. P. Newby and M. E. Forkner, for appellee.

DAVIS, J.

The appellee recovered judgment against appellant in the court below for $3,000 on account of personal injuries. With their general verdict the jury returned answers to a large number of interrogatories. The errors complained of are predicated up on the action of the trial court in overruling the demurrer to the complaint, the motion for judgment upon the answers by the jury to the interrogatories, the motion for a new trial, and rendering judgment in favor of appellee upon the general verdict.

The ruling of the court on the demurrer to the complaint is the first question discussed. The complaint, omitting the formal allegations, charges, in substance, that the appellant's railroad crosses the National road, in the village of Raysville, Henry county, at an angle of about 30 degrees, at or near the center of Raysville. That the National road at this point is about 80 feet wide, and Raysville contained a population of about 300. That the highway runs east and west through the town, and the railroad runs northeasterly and southwesterly. That on the north side of the highway, and east of the crossing, there were a large number of dwelling houses and buildings obstructing the view of the railroad track to the east. That the railroad, east of the crossing, curves to the east, and the view is obstructed by hills, etc. That two other highways cross the railroad,-one on either side of the National road crossing, and 400 feet therefrom. That on the 22d of December, 1888, appellee, with one John E. Keys, was returning from church, east of Raysville, and upon invitation of Elijah Applegate they rode with him from the church, intending to go to Knightstown, where the parties all resided. That they were riding in an ordinary covered spring wagon, with one seat, and drawn by one horse. The plaintiff was seated with the driver, on the same seat, and was facing in the direction in which they were traveling; Keys being seated between plaintiff and Applegate, facing the rear of wagon. That in this situation they approached the railroad crossing. That when about 100 feet from the crossing, Applegate checked his horse to a slow walk, and he and plaintiff looked and listened, with due care and diligence, for approaching trains, but neither saw nor heard any train approaching, and no trains were then due. That thereupon Applegate drove the horse upon and over the crossing, and just as the wagon passed over the track the appellant's servants negligently and without giving any signal ran a through mail train, at the rate of 50 miles an hour, over said crossing, from the east; and as the engine passed the horse, running almost parallel with the course in which he was going, appellant's servants negligently and maliciously opened the side valves of the engine, thereby causing a great vapor of steam and smoke to escape with a loud, hissing, and frightening noise, which, combined with the noise of the train, created a perfect tumult of noise and confusion. “And the plaintiff expressly avers that the defendant did not, nor did any of her servants, agents, or employés in charge of said train or otherwise, sound any whistle or ring any bell within three-quarters of a mile of said crossing while approaching thereto, but, on the contrary, he avers that she, by her servants as aforesaid, did in a most careless and negligent manner run said train of cars, out of time, into and through said place, when people were constantly passing and repassing, at the unusual high rate of speed aforesaid, upon a down grade, without sounding any whistle or ringing any bell within threefourths of a mile of said crossing. That, had any signal been given, the plaintiff and said Applegate could and would have heard the same, and the injury could and would have been avoided.” And by reason of the negligent and careless acts of the appellant, by its employés aforesaid, the said horse, though perfectly gentle and docile, became greatly frightened and unmanageable, and ran away. That the driver, in attempting to control the horse, broke the bridle bit, and, the horse then being beyond control, and running in the direction of a large number of locust shade trees, standing upon the side of the street, a short distance ahead of him, the appellee, to avoid collision with the trees, and the danger therefrom, which seemed to him at the time imminent and unavoidable, attempted to leap from the wagon, and, falling upon the ground, received bruises and injuries to his shoulder and arms, for which he sues and demands judgment. That the injury resulted wholly from defendant's negligence, and without any fault of plaintiff.

It is insisted by counsel for appellant that the purpose of the pleader was to rely upon the common-law action of negligence in causing the escape of the steam, and thereby causing the horse to take fright and run away, and that the allegations as to the failure by appellant's servants to give the statutory signals were for the purpose of showing that the appellee was not in fault in bringing him in close proximity to the passing train, and were not stated as the basis of a cause of action under the statute. On this theory the contention is that the complaint is not sufficient. We do not concur with the views of counsel for appellant as to the theory of the complaint. In our opinion, the complaint proceeds upon the theory that the appellant negligently failed to give the statutory signal, by reason of which the appellee, in the exercise of due care, was placed in a position of danger, and that by reason of such negligence, and the noise of the train and the escape of steam as concurrent acts and circumstances, the horse became frightened, and the appellee was injured. On this theory the complaint is sufficient. Railroad Co. v. Davis (Ind. App.) 33 N. E. 451.

The second and third assignments of error-that the court erred in overruling appellant's motion for judgment in its favor on the answers of the jury to the interrogatories, and in rendering judgment for appellee-we will consider together. The interrogatories which were submitted at the request of the appellant, and the answers of the jury thereto, are as follows: “(1) Was plaintiff injured through the negligence of any of defendant's agents or servants? If so, state specifically what act of negligence, and by whom committed. State all. Ans. Yes, by neglecting to sound proper signals by defendant's agents or servants in charge of train. (2) State whether or not the whistle was blown upon defendant's train prior to approaching said crossing, and, if so, how many times, and where at each time. Ans. Yes. The whistle was blown once at some point beyond Pritchard's crossing. (3) If plaintiff had heard the signal from defendant's train before he went on the crossing, could he have avoided the injury? Ans. Yes, if given as law directs. (4) If plaintiff had seen defendant's approaching train before going upon the crossing, could he have avoided the injury? Ans. No. (5) How far eastwardly from the crossing where the accident complained of took place would a traveler on the National road have to go before he would meet any obstruction which would prevent his seeing the train approaching from the northeast, going along defendant's track? Ans. Ninety feet. (6) How far up the track toward the northeast could he see an approaching train before he came to those obstructions? Could he not see more than half a mile? Ans. (1) About a third of a mile. (2) No. (7) From a point in the middle of the National road, 108 feet east from the center of the crossing, could not a train coming from the northeast along defendant's road be seen at all points within 3,100 feet of the crossing, at the time of the accident complained of? Ans. No. (8) Could not such train be so seen from all places in the National road between the crossing and this point, 108 feet distant therefrom? Ans. No. (9) From a point in the middle of the National road,-from a point 80 feet east from the crossing,-could not a train coming from the northeast along defendant's road be seen at 3,100 feet of the crossing at the time of the accident? Ans. No. (10) Could not such train be seen from all points on the National road, between the crossing and this place, 80 feet distant therefrom? Ans. Yes. (12) Was the plaintiff acquainted with the character of the crossing at which the accident occurred, and the approaches thereto? Ans. Yes. (13) Did plaintiff believe said crossing to be a dangerous one? Ans. Yes. (14) At what hour of day or night did the accident occur? Ans. Two o'clock p. m. (15) At what rate of speed did plaintiff approach the crossing from a point 100 feet east of it? Ans. Part of the time in a walk and part of the time in a slow trot. (16) At what rate of speed did defendant's train approach the crossing? Ans. Fifty miles per hour. (17) What did the plaintiff do to avoid the accident and injury resulting from it? State all that he did, and where each thing was done. Ans. (1) He engaged in conversation with those in the wagon as to the possibility of a train being due when at Brando road. (2) He used his eyes and ears from this point to the crossing; then at the crossing he told Applegate to watch his horse. (18) Did plaintiff at any time, when approaching the crossing, request the driver of the wagon in which he was riding to stop? If so, when? Ans. No. (19) In approaching the crossing, was not the steam shut off from the cylinder of defendant's engine? Ans. No. (20) Could steam escape from the cylinder of defendant's...