Chesapeake & O. Ry. Co. v. Boston
| Decision Date | 17 November 1948 |
| Docket Number | 28405. |
| Court | Indiana Supreme Court |
| Parties | CHESAPEAKE & O. RY. CO. v. BOSTON. |
Appeal from Delaware Circuit Court; Clarence G. Higi, Judge.
For opinion of Appellate Court, see 75 N.E.2d 194.
Albert H. Cole, of Peru, and Warner, Clark & Warner, of Muncie, for appellant.
Ross McCord, Ice & Miller, R. Stanley Lawton and G. P. Ryan all of Indianapolis, and Clarence Benadum, of Muncie, for appellee.
Order to transfer vacated.
This case was previously transferred to this court from the Appellate Court, and now the majority of this court is of the opinion the order of transfer should be vacated. For the opinion of the Appellate Court, see Clesapeake & Ohio Rwy. Co. v. Boston, Ind.App. 1947, 75 N.E.2d 194. Because I feel that under the prior well decided precedents in this state there is no reversible error in the record, and that the case was fully and fairly tried, I must dissent from the action of this court, and in such case a written opinion is proper. In re Petitions to Transfer Appeals, 1931 202 Ind. 365, 174 N.E. 812; Hunter v. Cleveland, etc., R. Co., 1930, 202 Ind. 328, 174 N.E. 287; Myers v. Newcomer, 1930, 202 Ind. 335, 174 N.E. 290; Sluss v. Thermoid Rubber Co., 1930, 202 Ind. 338, 174 N.E. 291; Burkus and Heyverestes v. State, 1931, 202 Ind. 341, 174 N.E. 292. This is the second time this litigation comes before this court, the previous appeal being decided in Boston v. Chesapeake & O. Ry. Co., 1945, 223 Ind. 425, 61 N.E.2d 326.
Before the second trial the plaintiff filed a second amended complaint for the same grade crossing collision, which occurred on November 8, 1940, where the appellant's three railroad tracks cross Brady Street in the City of Muncie, Indiana. This complaint among other things alleged that on said date the crossing 'was rough and full of holes and in such condition that a driver of an automobile had to pay great attention to said crossing.' That the appellee Boston was driving north on Brady Street at approximately 9:30 o'clock at night and looked both ways and listened for any warning before entering the crossing but that when he was on the northernmost track he was suddenly struck by railroad cars being backed in a westerly direction by the appellant. The alleged negligent acts in the operation were: (a) Failure to display any light, (b) failure to ring any bell or give any audible warning, (c) operation within a residential and thickly populated district at a negligent speed of thirty to thirty-five miles per hour, (d) failure to blow the whistle three times beginning ninety yards from the crossing and failure to ring the bell continuously from said point to the crossing, and (e) failure to have any lookout at the crossing.
The jury returned a verdict for the appellee in the sum of $5,000, and from the judgment thereon this appeal is taken. The error assigned here is the overruling of appellant's motion for a new trial which assigned as errors therefor: First, the verdict is not sustained by sufficient evidence; second, the verdict was contrary to law; third, the damages were excessive; and, fourth, error of the trial court in giving plaintiff's requested instructions Nos. 1, 2, 4, 5, 6, 7, 8, and error in giving the court's own instruction No. 14 and error in refusing to give appellant's requested instruction No. 26.
The evidence when considered most favorable to the appellee, warranted the jury in finding that on the date alleged in the night time appellee was driving north on Brady Street in Muncie approaching a four-track multiple railroad crossing, which was rough and had 'dips you could put a spittoon in.' East of the crossing the tracks curved to the south and farther east curved to the north in the form of an S. On approaching the crossing from the south the view east was obstructed by some box elder trees and high weeds. The appellee stopped before driving on to the crossing, looked both ways and listened, but saw and heard nothing, and as he was driving across the fourth track, a cut of thirteen cars with an engine on the east end backed from the east into his automobile, and shoved it westward along that track for a distance of about 60 or 70 feet, with a coupler of the back car projecting through the side of his automobile, the force of the collision knocking the appellee about in the automobile 'like a rubber ball' and striking his head against the coupler and the top, throwing his car over in the south track, thereby causing him to sustain a post concussion syndrome and a permanent post-traumatic neurosis.
The entire record in this case consisting of more than 500 pages has been examined, and there is no merit in appellant's contention that the verdict was not sustained by sufficient evidence or was contrary to law or that the damages awarded are excessive.
There was no error in giving appellee's requested instruction No. 1, which recited the statute requiring sounding a whistle when an engine is not less than 80 nor more than 100 rods from a grade crossing and to ring the bell continuously from such distance until the crossing was passed. The instruction further recited the provisions of an ordinance of the City of Muncie prohibiting locomotive whistles from being sounded within the city, with the proviso, however, that whistles may be sounded where necessary to protect life or property. The instruction concluded that 'if you (the jury) further find that it was necessary, under the circumstances there existing as shown by all of the evidence, to sound said whistle in order to protect life or property, then you are instructed that such failure constituted negligence on the part of the defendant.' The jury had the right to find that the ordinance did not relieve the defendant of the duty to signal under the facts in this case. Pittsburgh, etc., R. Co. v. Terrell, 1912, 177 Ind. 447, 95 N.E. 1109, 42 L.R.A., N.S., 367. There was evidence in the record which would warrant a jury in believing that the engine was at least 1,565 feet from the crossing before the cut of cars was backed into appellee's automobile. Nor was it necessary for the complaint to allege a violation of the statutory duty in specific words of the statute. Lake Erie, etc., R. Co. v. Howarth, 1919, 73 Ind.App. 454, 124 N.E. 687, 127 N.E. 804; Pittsburgh, etc., R. Co. v. Hoffman, 1928, 87 Ind.App. 619, 155 N.E. 622. The second amended complaint did charge a failure to ring any bell and to give any audible warning to the plaintiff, and the failure to give the statutory signals was properly in issue.
The appellant's objections to appellee's requested instructions No. 2 and No. 7 are so general that they fail to comply with Rule 1-7 of this court requiring the objections to instructions to be specific. When objections are indefinite no available error is presented upon appeal. Allman v. Malsbury, 1946, 224 Ind. 177, 65 N.E.2d 106; Mackey v. Niemeyer, 1943, 113 Ind.App. 10, 44 N.E.2d 520.
By plaintiff's requested instruction No. 4 the jury was told in substance that if they should find that as the train was backing, because of the location of the engine signals could not be heard at the crossing, and that the defendant was aware of that fact, that it then became the duty of the defendant 'to give reasonable and timely warning of the approach of the train to said crossing in some other way if you further find from all the evidence such warning was required in the exercise of ordinary care.' The giving of the statutory signals would still not relieve the railroad company from its common law duty to use due care under all circumstances in the operation of its train across the grade crossing. If in the exercise of ordinary care other warning was required and was not given, a violation of such a duty would be negligence, and the determination of this question was properly left to the jury. Pittsburgh, etc., R. Co. v. Macy, 1915, 59 Ind.App. 125, 107 N.E. 486; Chicago, etc., R. Co. v. Biddinger, 1916, 63 Ind.App. 30, 113 N.E. 1027; Pittsburgh, etc., R. Co. v. Tatman, 1920, 72 Ind.App. 519, 122 N.E. 357; Pittsburgh, etc., R. Co. v. Terrell, 1912, 177 Ind. 447, 95 N.E. 1109, 42 L.R.A., N.S., 367. Nor was the railroad company relieved of its duty to use due care because it was switching. New York, etc., R. Co. v. Shields, 1916, 185 Ind. 704, 112 N.E. 762.
Appellee's requested instruction No. 6 in substance informed the jury that it was the plaintiff's duty to look and listen 'at times and places and in a manner which a reasonably careful and prudent man in the same or similar circumstances would have looked and listened.' This put upon the plaintiff the duty of using due care, and by appellant's instruction No. 19 which was given to the jury, the plaintiff was required to 'select a place and time to look and listen where looking and listening would be reasonably effective.' The jury was correctly instructed on the duty to look and listen.
Appellee's requested instruction No. 8 was limited to 'injuries received as a proximate result of defendant's negligent acts,' and therefore was not subject to objection for failure to embody proximate cause, nor could the appellant complain because the instruction was limited to a consideration of only the elements enumerated in the instruction. The appellant was not in a position to complain because other elements of damages were not enumerated. If an instruction is favorable to a defendant by reason of being too limited under the law applicable, the defendant is not harmed. Northern Indiana Power Company v. West, Admx., 1941, 218 Ind. 321, 32 N.E.2d 713. See also Jones v. Cary, 1941, 219 Ind. 268, 37 N.E.2d 944.
Appellant objected to the court's definition of proximate cause as embodied...
To continue reading
Request your trial