Indiana, B.&W. Ry. Co. v. Greene

• Citation: 106 Ind. 279,6 N.E. 603
• Court: Supreme Court of Indiana
• Decision Date: 20 April 1886
• Parties: Indiana, B. & W. Ry. Co. v. Greene, Adm'x, etc.

106 Ind. 279

6 N.E. 603

Indiana, B. & W. Ry. Co.

v.Greene, Adm'x, etc.

Supreme Court of Indiana.

April 20, 1886.

Appeal from Montgomery circuit court.C. W. Fairbanks and Kennedy & Kennedy, for appellant.

Thompson & Herod, W. H. Thompson, and T. L. Stilwell, for appellee.

Mitchell, J.

This action was brought by Sarah A. Greene, administratrix of the estate of Joseph W. Greene, against the Indiana, Bloomington & Western Railway Company, to recover damages for wrongfully causing the death of her intestate, who was also her husband. She recovered a judgment in the court below. A reversal of that judgment is contended for upon two grounds: (1) Because it is said the evidence wholly fails to show that the deceased was free from contributory fault; (2) because the case was put to the jury on an erroneous theory by the court in its instructions.

Although the record embraces nearly 1,000 pages of testimony, some facts of controlling importance are undisputed. The deceased at the time of, and for more than six months prior to, his death, was engaged in driving a public conveyance between the city of Crawfordsville and the town of Alamo. During this time he had regularly passed over the place where the accident occurred, twice each week, and was familiar with the crossing, and its surroundings, and with the running of trains on the appellant's railway. So far as appears, no change in respect to these had occurred during that period. On the twelfth day of March, 1883, while making his usual trip, he was seated on the front seat of a covered hack, in which he was carrying a gentleman and lady as passengers. At the point where the gravel road, along which he was proceeding, crosses the appellant's railway, his hack was brought into collision with one of the appellant's westward bound passenger trains. The hack was demolished. The intestate and both passengers were almost instantly killed. No person who lived to give any account of the occurrence, except the engineer on the engine, witnessed the collision, so as to be able to describe the manner in which the deceased approached the crossing. The only evidence upon that subject, other than that given by the engineer, was to the effect that the decedent was seen some 200 yards distant, driving in a “jog trot” in the direction of the crossing. The engineer testified that when he first saw the team and hack they were about 50 feet from the track, approaching it rapidly; that the driver was “leaning forward as though he was urging his horses;” and that one of the horses was galloping and the other trotting. He reversed his engine, and applied the air-brakes, but was unable to stop his engine in time to avoid the collision. There was no impeachment of this witness, nor was his testimony contradicted, although it is claimed that some of his statements are inconsistent with other facts testified to by him.

That the crossing was dangerous, and that, on account of a cut through which the track lay, the approach of trains from the east could be seen from the highway only by the exercise of more than ordinary prudence and vigilance, is plainly deducible from the somewhat conflicting evidence pertaining to that subject. The engineer and fireman, as well as several persons who were passengers on the train, and others apparently disinterested, who were in the vicinity, testified positively that the whistle was sounded and the bell rung when the train approached the crossing; while a number of persons equally credible, and with equal opportunities for hearing it, were no less positive that no warning whatever was given. In the state in which the testimony is presented on that subject, the jury might well have found, as they did, that no signal was given. It is not disputed that the train was running at a speed of 40 miles an hour, down grade.

The salient points in the case, as gathered from the record, are thus presented. From this statement it will be seen that the plaintiff, in her evidence, accounted for the deceased in his progress along the highway towards the crossing, to a point about 200 yards distant from the railway. Leaving him there, advancing upon the crossing in a “jog trot,” nothing further is disclosed in her evidence as to the conduct of the deceased until his lifeless body was taken up from the wreck of the collision. Whether he looked or listened-whether he slackened or accelerated his pace as he neared the crossing-cannot be ascertained from any evidence in the record, except that already referred to given by the engineer.

In support of the verdict, counsel say:

“The plaintiff made her case upon the positive evidence of many witnesses that the decedent, Joseph Greene, was run upon and killed by appellant's engine, at a crossing in a deep cut, while such engine [and train] was behind time, running at an unusual and dangerous rate of speed, and which approached said crossing coming down a steep grade, without the sound of a whistle or bell, as by positive statute required.”

Conceding this much the evidence still comes far short of making a case upon which a recovery can be maintained. It was absolutely essential that there should have been some evidence exhibiting the conduct of the deceased in approaching the crossing. In order to uphold the verdict, it must have affirmatively appeared, either directly or circumstantially, that he was free from contributory fault. Did he look or listen for the train, or did he continue on in a jog trot without thought of impending danger until horrified by the sight of the train, which was inevitably rushing upon him? Upon the plaintiff's case these questions are left to be determined by conjecture. It is said, because nothing appears to the contrary, we are bound to presume that the deceased was in the exercise of proper care. This would be to supply by presumption that which an unbending rule of law requires should be established by proof. The principles of law pertaining to actions of this nature were discussed in the recent case of Cincinnati, H. & I. Ry. Co. v. Butler, 103 Ind. 31; S. C. 2 N. E. Rep. 138. It can hardly be necessary to recur to them again. It may suffice to say, since it is the established rule of this court, as it is of the courts in a large majority of the states, that it must be affirmatively shown that the injured party was in the exercise of due care at the time the accident occurred. At least it must be made to appear that want of care on...