Cincinnati, H.&I.R.R. v. Butler

• Decision Date: 16 September 1885
• Citation: 103 Ind. 31,2 N.E. 138
• Parties: Cincinnati, H. & I. R. R. v. Butler.
• Court: Indiana Supreme Court

103 Ind. 31

2 N.E. 138

Cincinnati, H. & I. R. R.

v.Butler.¹

Supreme Court of Indiana.

Filed September 16, 1885.

Appeal from Franklin circuit court.

R. D. Marshall and W. C. Forrey, for appellant.

B. F. Claypool, for appellee.

Mitchell, C. J.

Daniel W. Butler, a physician residing in Connersville, Indiana, became involved in a collision which occurred on the afternoon of the sixth day of January, 1883, at the point where Eastern avenue, along which he was driving northward, crosses the Cincinnati, Hamilton & Indianapolis Railroad. The engine of a regular passenger train going eastward collided with the top buggy in which he was riding. He was thrown violently upon the ground, and severely injured. To recover damages for the injuries sustained this action was brought, resulting in a verdict and judgment for the plaintiff below.

It is insisted that the plaintiff failed entirely to prove that he was free from contributory negligence, and that the appellant's motion for a new trial should have been sustained on the ground that the verdict was not supported by the evidence. There was sharp conflict in the testimony, as it appears in the record, at some of the material points. At other points not seriously disputed it leaves the plaintiff's right to recover, to say the least, in doubt. The plaintiff, and others in his behalf, testified that the train was being run at a rate of speed prohibited by a city ordinance, and that it approached the depot and crossing without giving any warning, either by sounding the whistle or ringing the bell. Against this the engineer and conductor of the train, and several others, some employes of the company, and others not, testified positively that signals were given, both by sounding the whistle and ringing the bell. As the evidence stood upon this point, although negative on the part of the plaintiff, the jury could well have found that the railroad company neglected its statutory duty.

Concerning the manner in which the plaintiff approached the track, and how his vehicle came into the collision, he testified that he drove north along the center of Eastern avenue in a slow trot until he came to the grade; that then his horse fell into a quick walk; that as he passed the corner of the foundry building, he looked up and down the tracks, and neither heard nor saw the approaching train; that a box car was standing on the south switch, some 20 feet west of the line of the street; that “as I passed the box car, and after I got past the box car so that I could see up the track, then I looked up the track and saw an engine in close proximity to me. I looked west; the distance it was would be impossible to tell. It was not very far from me. I do not think it was a hundred feet, perhaps not more than that. My horse was just entering on the main track. Whether he was on the main track I could not say, but his head was when I saw the engine. It flashed over me for a moment what to do. My horse's head was on the main track. I just got my whip and gave the horse a lick. He was very quick, and went over the track. Just as I did that, the engine gave three sharp whistles in quick succession. Just as the last whistle sounded, the engine struck my buggy. That is all I remember.”

Mr. Longfellow, an apparently disinterested and credible witness for the defendant, who saw the occurrence, describes it as follows: “I remember the accident on that day, (January 6, 1883.) I was along the side track, forty or fifty yards from the crossing at Eastern avenue and the railroad. I was unloading a car of logs. I saw the plaintiff at the time come up Eastern avenue in a buggy. When I first seen him, I heard the cars coming and heard them whistle. He drove right onto the erossing, and when his horse came up onto the switch tracks, the locomotive was very close to him. The horse tried to get off the track. Mr. Butler pulled on his left line, and done his best, and whipped the horse. He pulled him right in ahead of the locomotive. The locomotive struck the buggy between the front and hind wheels, as near as I could see, and threw it over on the horse. And that was all I could see, as the cars came between me and the buggy.”

It appears from the evidence that, approaching the railroad track going northward, a building called the “Olf Foundry” obstructs a view of the track to the eastward until a point from 40 to 45 feet south of the main track is reached. It was claimed, too, that a box car standing on the switch at the time of the collision presented some further obstruction in that regard. Assuming that the train was proceeding at a rate of speed prohibited by ordinance, and that, contrary to the usual custom, it approached the crossing and depot without giving the prescribed signals, and conceding, too, that the situation was such that a view of the approaching train was difficult to be had, it is nevertheless not clear that the plaintiff exercised such care as removes the presumption of contributory negligence. The degree of caution which the law requires of one about to cross a railroad track, in order to entitle him to recover damages for an injury sustained by coming in collision with a train, has been so often stated by this court that to repeat it would add nothing to its force. That it is difficult, or requires extraordinary effort, at a particular place to ascertain whether or not it is safe to attempt to cross, does not excuse one who is familiar with the locality, and the danger surrounding it, from exercising care proportioned to the probable danger. Manifestly, where obstacles interfere which obstruct sight and sound, it is the plain dictate of ordinary prudence that the traveler on the highway should approach the crossing with a degree of caution much above that which would be required at a point where no obstacles intervened.

While it is imperatively required of those in charge of a train that they give the statutory signals when approaching crossings, and while it may be sufficient to establish negligence against a railroad company to show that a train was run at a rate of speed prohibited by an ordinance, yet, inasmuch as signals given may, under the circumstances supposed, not be heard, or because, through neglect or otherwise, those in charge of the train may fail to give them, the traveler who sustains an injury by coming in collision with the train will not be exonerated from the presumption of contributory negligence, if it appears that, by the exercise of any degree of diligence which was, under the circumstances, reasonably practicable and available, he might have avoided the injury. Bell fontaine Ry. Co. v. Hunter, 33 Ind. 335;Railroad Co. v. Shuckman, 50 Ind. 42;Railroad Co. v. Mathias, Id. 65. The negligence of the railroad company in failing to observe the obligation imposed on it by statute will not excuse one who sustains an injury at a crossing, if he neglects the diligent use of all available means of avoiding such injury, nor will its failure in that regard abrogate or modify the rule that no one shall recover damages for an injury, not purposely or wantonly inflicted, to which his own negligence contributed.

A traveler should always approach a railway crossing under the apprehension that a train is liable to come at any moment, and while he may presume that those in charge of it will obey the law by giving the statutory signals, the law will nevertheless require that he obey the instincts of self-preservation, and not thrust himself into a situation of danger, which, notwithstanding the failure of the railroad, he might have avoided by the careful use of his senses. The record in this case does not require us to determine whether the evidence shows that the plaintiff came within the rule required, as it is obvious from an examination of the instructions that the case was given to the jury upon a theory which the law does not justify.

At this point it is suggested that the instructions given to the jury are not properly in the record. It is contended that the bill of exceptions copied into the transcript, purporting to set out the charge of the court, did not, in the form in which it was signed by the judge, identify the charge given in such manner as authorized the clerk to copy it into the transcript. The bill, as signed, did not embody the instructions, but referred to them in the manner following: “And be it further remembered that after the charge of the court to the jury, which charges are in the following words and figures, to-wit,” here insert, “and to which charges proper exceptions were taken at the time, and duly signed by the court.” Contrary to the rule which prevailed prior to the enactment of the Code, it is now competent to incorporate a paper or document into a bill of exceptions without copying it into the bill. This may be done by so describing or designating it as that the clerk may know to a certainty the particular paper or document intended to be inserted, and by designating by the words “[here insert]” the place where it is to be copied by the clerk in making the transcript. Kesler v. Myers, 41 Ind. 543;State v. Railroad Co. 44 Ind. 350;Irwin v. Smith, 72 Ind. 482. The paper to be copied into the transcript must be so described or designated as that when the transcript is read it can be recognized as the one described. This is to prevent imposition by the clerk, either through mistake or by design. The papers which were to be copied into the bill under consideration were the charges of the court, to which exceptions were taken “and duly signed by the court.”

It must be understood from this that all the charges given were excepted to at the time, and signed by the court. For the purpose of indicating to the clerk the charges which were to be inserted at the place designated, the court recited in the bill that they were such as had been excepted to and signed by the court. Under this designation no charges except such as were so excepted to...