Louisville & N.R. Co. v. Revlett
| Decision Date | 14 May 1946 |
| Docket Number | 28177. |
| Citation | 65 N.E.2d 731,224 Ind. 313 |
| Court | Indiana Supreme Court |
| Parties | LOUISVILLE & N. R. CO. v. REVLETT. |
Appeal from Posey Circuit Court; Herdis F. Clements Judge.
Darby & Fitzgerald, of Evansville, William Espenschied, of Mt Vernon, and J. P. Hamilton, of Louisville, Ky., for appellant.
John H. Jennings, of Evansville, for appellee.
This suit was brought by the appellee against the appellant for personal injuries sustained by him in a collision between an automobile in which he was riding which was driven by his son into the side of a box car which was the nineteenth car of a slowly moving freight train owned and operated by the appellant. The accident occurred at the intersection of U. S. Highway 60 and the appellant's right of way in the town of Cloverport, Kentucky. From a verdict and judgment in favor of the appellee appellant prosecuted this appeal.
All the evidence as to the nature of the relationship that existed between appellee and the driver of the automobile at the time of the accident was that contained in the testimony given by the appellee in his own behalf which was substantially as follows: The appellee testified that at the time in question he lived at Rumsey, Kentucky, and that he, his son Harold age 24, and one Crow Jarvis were making a trip from appellee's home to Lexington, Kentucky; that they were all riding in the single seat of the automobile; that his said son was driving and that appellee was sitting on the right-hand side and that Mr. Jarvis was sitting between appellee and his son; that the automobile belonged to appellee's other son, Charles; that Harold was unmarried, and was attending the University of Kentucky which is located at Lexington, and was returning there to school; that the appellee was also going to Lexington where, by the invitation of Harold, he intended to visit him and some boys he knew. Jarvis was going to Frankfort to attend to some business of his own; that Jarvis was authorized to accompany appellee and his son by the appellee; that Harold would come home every two or three months while in school at Lexington. On his cross-examination appellee testified that he was making this trip as a guest of his said son Harold, and was going to Lexington to visit him and that Harold had no interest in the automobile; that his son, Charles, had left the automobile with him while away from home; that while the automobile was at his home, any one using the same bought the gasoline; that no arrangements were made about the return of the automobile from Lexington after the trip had been completed, except that Harold was to stay in Lexington and the appellee and Jarvis intended to come back together if Jarvis stayed as long as the appellee did, and that Jarvis was to help the appellee drive the automobile on the return trip to appellee's home at Rumsey, Kentucky.
From the undisputed evidence it appears that this crossing accident happened about 4 o'clock in the morning of October 21, 1940; that the highway, at said intersection, extends in a northerly and southerly direction and that the same is improved by a pavement approximately 18 feet in width; also, at and near said intersection with sidewalks on each side of the pavement of undetermined width, that appellant's railroad tracks, at said crossing, intersect the highway approximately at right angles; that the highway comes into the town south of said railroad right of way from a westwardly direction and curves northeastwardly as it approaches said crossing; that from the point where said curve ends, the highway runs north to the place where it intersects with appellant's tracks at the crossing; that immediately south of the intersection on each side of the highway there are houses and a certain number of trees between said houses and the highway, which are standing in the yards where the houses are located; that there was nothing under ordinary conditions to obstruct the vision of a driver driving north towards the intersection after the had rounded the above described curve and from said point he would be able to see across the crossing and have a clear view of everything in front of him; that, at the time, the crossing was enveloped in a very heavy fog and the night was dark; that the appellee was, and for several years prior to the accident had been, familiar with said crossing and aware of the signal devices that were located thereat; that the driver, Harold Revlett, at the time of the accident, was not familiar with or acquainted with the crossing or the signaling devices there located; that said crossing is located in the resident portion of the town; that at the time of the accident a statute of the State of Kentucky made it prima facie evidence of unreasonable and improper driving for a vehicle to be driven along a highway passing through the residence portion of any city or town at a rate of speed exceeding 25 miles per hour; that at the time of the accident there was a metal reflector railroad crossing sign located on the right side of the paved highway at a point some distance south of the crossing; and there was a railroad crossing sign painted in white across the east half of the paved highway at a point more than 100 feet south of the crossing; that immediately to the south of the said crossing and to the west of the paved portion of the highway there was, and for a long time prior thereto had been, installed and maintained by the appellant an automatic, electrically controlled gong and wig-wag red flashing light or signal; that at the time of the accident said gong was sounding and said wig-wag signal was working; that said automobile was a Ford coupe and was in good working condition including the headlights thereon; that at the time of the accident the laws of Kentucky required all automobiles to have at least two lighted lamps in front showing white or tinted lights other than red lights, and of sufficient power to clearly reveal substantial objects at least 350 feet ahead; that aside from telling the driver as they entered Cloverport, that they were so entering, appellee said nothing to the driver before the accident.
In addition to the undisputed evidence the appellee in his case in chief produced evidence to show that this was a particularly hazardous and dangerous crossing due to the topography and geography thereof, in that the above mentioned curve was an abrupt curve and that the same ended very close to the intersection, to-wit: at an estimated distance of not more than 75 feet; also, that the said intersection, as one approached it from the south, was obstructed by the limbs of trees which grew out over the sidewalk and into the street. As to the evidence concerning the obstruction to the said crossing by the trees, we are of the opinion that only one reasonable inference can be drawn therefrom, namely, that the highway as it approached appellant's track was not obstructed; that at the time of his injury, a fog so enveloped the crossing that the train passing over it could not be seen; that he heard no sound from the gong; that there was no light in the signal and the same had been out for several days; that if there had been a red light in the flashing signals, the same could have been seen by him through the fog; that as the automobile was rounding the curve, the driver was slowing down.
Appellant's evidence in its behalf was to the effect that said curve was an eight degree curve, which was undisputed by the appellee, and that said curve ended 222 feet south of its right of way; that the headlights from an automobile as it approached from the south would reveal the crossing 300 feet away; that at the time of the accident said metal reflector railroad crossing sign was located on the right side of the paved highway at a point 387 feet south of the crossing from which you could see the crossing; that there was a railroad crossing sign painted in white across the paved highway at a point more than 100 feet suth of the crossing; that appellant's train at the time of the accident, was traveling at not more than four or five miles per hour in a heavy fog and had given the usual warning as it approached the crossing.
Appellant has assigned as error the overruling of its motion for judgment on the jury's answers to special interrogatories notwithstanding the verdict. It insists that the answers to Interrogatories 13, 15, 16, 25, 26, 28, 30 and 31 show contributory negligence as a matter of law on the part of the appellee, with this we cannot agree. The facts found in the answers to the above interrogatories other than No. 13, are as follows: The appellee was familiar with the crossing in controversy while his son, who was driving the automobile at the time of the accident, was not. When the automobile reached the western limits of...
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