Bartley v. Chicago & E.I. Ry. Co.

• Decision Date: 22 December 1939
• Docket Number: 27308.
• Citation: 24 N.E.2d 405,216 Ind. 512
• Court: Indiana Supreme Court
• Parties: BARTLEY v. CHICAGO & E. I. RY. CO. et al.

24 N.E.2d 405

216 Ind. 512

BARTLEY v. CHICAGO & E. I. RY. CO. et al.

No. 27308.

Supreme Court of Indiana

December 22, 1939

Appeal from Warrick Circuit Court; Union W. Youngblood judge.

John H. Jennings, of Evansville, and Morton C. Embree, of Princeton, for appellant.

Hatfield & Hatfield, of Evansville, and McDonald & McDonald of Princeton, for appellees.

SWAIM, Judge.

This is an appeal from a judgment in favor of the appellees, Chicago and Eastern Illinois Railway Company and Leslie Allyn, in an action for personal injuries to the appellant, George Bartley, resulting from a collision between a truck being driven by the appellant and a train of the appellee Railway Company at a street crossing in the City of Evansville Indiana.

The plaintiff below, appellant here, first filed his complaint against the Chicago and Eastern Illinois Railway Company and Leslie Allyn and thereafter amended said complaint by making Charles M. Thomson as Trustee of the Estate of Chicago and Eastern Illinois Railway Company an additional party defendant. The accident on which the complaint was based occurred prior to the appointment of the said trustee. The said Charles M. Thomson, as such trustee, filed a motion to stay all proceedings in said cause and the court sustained said motion in part, ordering the proceedings permanently stayed as to said trustee.

The other two defendants to said complaint filed answers in general denial thereto. On the issues so joined the cause was submitted to a jury, and at the conclusion of the plaintiff's evidence the two remaining defendants moved the court to return a verdict in their favor. This motion was sustained by the court and the jury, pursuant to the instruction of the court, returned a verdict for said two defendants and judgment was entered thereon.

The plaintiff's motion for a new trial was overruled and he then perfected his appeal, joining as an appellee Charles M Thomson, as Trustee of the Estate of Chicago and Eastern Illinois Railway Company. No question is presented in this appeal on the order of the trial court staying the proceedings in said cause as to said trustee.

Said Charles M. Thomson, as such trustee, filed a motion herein to dismiss this appeal as to him on the ground that he was not a party to the judgment appealed from and has no interest therein. It is true that said trustee was not a party to the judgment appealed from, but in our opinion he did have a sufficient interest in the judgment to justify the appellant in naming him a party appellee herein. While the proceedings had been stayed permanently as to said trustee the appellant was permitted to proceed with the cause against the railway company, whose assets, business and affairs were in the hands of the trustee in bankruptcy. If appellant should recover a judgment in this cause against the railway company his next step would probably be an attempt to collect the judgment from the property of the company now in the hands of the trustee. Without passing on the question of whether, by an appropriate proceeding in the court which appointed the said trustee, the appellant could collect a judgment against the company from the assets in the hands of the trustee, the fact remains that the interest of the trustee in the judgment was adverse to the appellant and the said trustee is, therefore, interested in maintaining the judgment rendered in favor of the company. If such judgment is maintained there necessarily can be no claim thereon filed in the bankruptcy proceeding against the assets in the hands of the trustee.

It has been held that persons may be made parties to an appeal when they were parties to the record and interested in maintaining the judgment even though they were not actually parties to the judgment. Trippeer v. Clifton, 1912, 178 Ind. 198, 97 N.E. 791, 39 L.R.A.,N.S., 522; In re Northwestern Indiana Tel. Co., 1930, 201 Ind. 667, 677, 171 N.E. 65. Here the action as against the trustee was not dismissed although the proceedings against him were stayed. He was still a party to the record when the judgment was entered against the appellant. In maintaining this judgment the trustee has such an interest as to justify making him a party appellee to this appeal.

The motion to dismiss this appeal as to such trustee is, therefore, overruled.

The principal question presented by this appeal is based on the alleged error of the trial court in giving to the jury the peremptory instruction to find for the defendants and against the plaintiff.

The accident out of which this action arose occurred about 2:00 o'clock P. M. on June 29, 1933, at the intersection of Heidelbach Avenue and Division Street, two public highways within the corporate limits of the city of Evansville, Indiana. Heidelbach Avenue extends in a northerly and southerly direction and Division Street intersects Heidelbach Avenue at a right angle, said Division Street extending approximately east and west. The tracks of the appellee Railway Company extend east and west along the approximate center of Division Street. At the time of the accident the appellant was driving a model T Ford truck south on and along said Heidelbach Avenue. When said truck reached Division Street and the tracks of the appellee company it was struck by appellee Railway Company's engine, which was being operated backwards towards the east by appellee Allyn and was pulling a string of box cars.

The appellant in his amended complaint alleged negligence on the part of the appellee Railway Company, (1) in failing and neglecting to so construct and maintain said railroad upon and across said Heidelbach Avenue and in failing to maintain the surface of the street between its tracks, in such manner as not to interfere with the free use of the said highway, and to afford security for life and property, (2) by failing to maintain a flagman or automatic warning bells or signals to warn travelers on said highway of the approach of a train, (3) in backing and operating said engine and train of cars across said Heidelbach Avenue at a dangerous and unlawful rate of speed in violation of a certain ordinance of the said city of Evansville, (4) in failing to give any warning by whistle, bell, signal or otherwise of the approach of said engine and cut of cars, (5) in failing to have a person on the front of said cut of cars as it approached Heidelbach Avenue as a lookout for traffic on Heidelbach Avenue, and (6) in failing to stop said engine and train of cars immediately before entering Heidelbach Avenue contrary to another ordinance of the city of Evansville.

No evidence was introduced by the appellees. The evidence introduced by the appellant was conflicting on some of the important facts sought to be established. There was evidence tending to show that the engine and cut of box cars, as they approached Heidelbach Avenue and entered the intersection, were traveling at a speed of some fifteen to twenty miles per hour in violation of the city ordinance regulating the speed of trains within the city of Evansville, which ordinance was as follows: 'Section 1. Be it ordained by the Common Council of the city of Evansville that it shall be unlawful to construct any railway or railroad track or switch or to lay down any cross tie or rail on any street, alley or other public place within the city without first securing the right so to do according to the provisions of the charter of said city and it shall be unlawful to run any passenger train on any track through the city of Evansville at a rate of speed exceeding twelve miles per hour or any freight trains at a rate of speed exceeding eight miles per hour and to run any engine or car or to go at a rate of speed exceeding the maximum rate fixed in this section.'

Some evidence also tended to show that no warning of the approach of said train, either by bells or whistle, was given for the traffic of Heidelbach Avenue. The evidence was undisputed that the company maintained no watchman or flagman at this crossing and that it maintained at said crossing no warning bells or signals of any kind for the purpose of warning the travelers on Heidelbach Avenue of the approach of a train.

The evidence was also undisputed that the appellee company provided no person on the back of said engine, to watch for traffic and to give warning of the approach of said engine, as it backed towards and into Heidelbach Avenue. It was further shown that on the right hand side of Division Street, as you approached Heidelbach Avenue, both from the east and from the west, there were signs on which was printed 'Thru Street--Stop.'

The engine and the cut of cars in question did not stop before entering Heidelbach Avenue and the evidence tended to show that there was not even a slackening of their speed as they approached the intersection.

There was evidence presented that showed that Heidelbach Avenue was paved with asphalt except between the tracks of said appellee Railway Company and for a distance of about a foot on each side of said tracks. Between the tracks of the appellee Railway Company on Heidelbach Avenue the street was rough and contained holes and ruts of varying widths and depths. Just inside said tracks there were ruts of sufficient size and depth to catch and hold the wheels of the truck being driven by appellant as he attempted to turn it to the left to avoid a collision.

One witness testified that the truck being driven by appellant had good brakes; that a test made out on the road showed that the truck, when empty and going fifteen miles per hour, could be stopped in twenty feet after the brakes were applied. There was no direct evidence on the distance it would require to stop said truck when, as here, it was loaded and traveling down grade on...