Ackerman v. Pere Marquette R. Co.

• Decision Date: 10 March 1915
• Docket Number: No. 8539.,8539.
• Citation: 108 N.E. 144,58 Ind.App. 212
• Parties: ACKERMAN et al. v. PERE MARQUETTE R. CO.
• Court: Indiana Appellate Court

58 Ind.App. 212

108 N.E. 144

ACKERMAN et al.

v.PERE MARQUETTE R. CO.

No. 8539.

Appellate Court of Indiana, Division No. 2.

March 10, 1915.

Appeal from Circuit Court, Porter County; W. C. McMahan, Judge.

Action by Jacob Ackerman and another against the Pere Marquette Railroad Company. From a judgment for defendant, plaintiffs appeal. Affirmed.Hickey & Wolfe, of La Porte, for appellants. Crumpacker Bros., and William Daly, of Valparaiso, for appellee.

MORAN, J.

On November 29, 1909, appellants were engaged in constructing a macadamized road in La Porte county, Ind., and in this connection were using a steam roller to pack the material out of which the road was being constructed. The line of work crossed appellee's railroad, and, while the steam roller was being operated in close proximity to appellee's track, it was struck by a locomotive drawing a passenger train and badly demolished.

To a complaint charging negligence, an answer of general denial was addressed. A trial was had before a jury in the Porter circuit court, where the cause had been venued. At the close of appellant's evidence, appellee moved the court to direct the jury to return a verdict in its favor, which motion was sustained by the court. To the action of the court in this behalf appellant duly excepted, and the ruling was carried into a motion for a new trial, the overruling of which is assigned as error in this court.

The error assigned calls for a review of the evidence as it applies to the negligence charged in the complaint. Briefly, the complaint alleges: That appellants, on November 29, 1909, were engaged in constructing a macadamized road in La Porte county, Ind., which ran east and west and appellee's railroad crossed the same at an angle of about 45 degrees running in a southwesterly and northeasterly direction. The view of the railroad for some distance back of the crossing was obstructed by timber and high banks, and the road passed through a deep cut, which made it impossible for travelers and persons working in the vicinity of the crossing to see the approach of the trains. On the date above mentioned appellants' servant was engaged in operating a steam roller over and upon the roadbed in the course of construction, in the neighborhood of the crossing, which appellee well knew. It was necessary to pass the steam roller over the railroad crossing at this point in building the macadamized road. That, while the steam roller was being operated in close proximity to appellee's track, it was struck by a locomotive which was drawing a passenger train at a high and dangerous rate of speed of 70 miles per hour. The appellee was negligent in the operation of its train. That neither the statutory, nor any other, signals were given as the train approached the crossing. Appellants' servant in operating the steam roller used due care; he approached the crossing at a rate of speed not to exceed one mile per hour; he examined his timepiece, and knew that no train was due at this point at the time he was approaching the crossing. That steam roller was damaged to the extent of $1,200.

The evidence discloses that the injury complained of occurred about 9 a. m., on November 29, 1909. Appellants' servant in charge of the road roller was familiar with its mechanism, having operated it for something like 2 months prior thereto. In the line of his duty, he had crossed the railroad at this point 40 to 50 times; his eyesight and hearing were good. Shortly before the accident he started in the neighborhood of the railroad crossing and went east on the south margin of the roadbed to the county line, which was some little distance. He then backed the roller up over the same side of the roadway. When he had backed the road roller to a point within 100 or 110 feet of the railroad crossing, he stopped and looked at his watch. From the time he had, the passenger train was overdue from the southwest some 25 or 30 minutes, and he was under the impression that it had passed, although he had not heard it. He then proceeded westward in the direction of the crossing at the rate of 1 1/2 to 1 3/4 miles per hour. The railroad crossing is some 2 or 3 feet higher than the highway at this point, but, after leaving the crossing to the southwest, there is a depression in the railroad bed, or rather an embankment thrown up, which partially obstructs the view of approaching trains from this direction. The incline on the newly constructed roadbed starts some 30 feet on either side of the railroad track, and is brought up gradually, so that the macadamized roadbed is level with the top of the rails of appellee's road. From the point where appellants' servant examined his watch until he came within 50 feet of the railroad crossing, the view of an approaching train to the southwest was partially obstructed. He was operating the steam roller in a standing position. The platform upon which he was standing was some 2 1/2 feet high, and, taking into consideration the height of the locomotive and the cars, he could have seen the top part of the locomotive and the cars. However, on reaching a point within 50 feet of the track, and from that on until he crossed the same, his view was unobstructed for a distance of about 80 rods to the southwest. As he approached within a few feet of the railroad track, he shifted the position of the road roller in order that he might reach the north side of the roadbed, as he intended to roll the north margin of the roadbed as he had previously rolled the south margin. He had no intention of crossing the railroad at this time. Using the witness' language, he was backing the roller “catacornered” from the south to the north side of the macadamized roadbed when the road roller was struck by the locomotive drawing the passenger train. As to whether a part of the roller was actually upon the railroad track is not clear, but its position was such that it came in contact with the locomotive.

The diligence that appellants' servant used while handling the steam roller in such close proximity to the railroad crossing becomes highly material. We set forth a part of his testimony as it appears from the record in this connection:

“Q. When you were backing up, were you looking towards the southwest along the track? A. Not after I got up within 100 feet of the track, I wasn't, or 50 feet of the track. Q. But before that did you look? A. I looked, but I couldn't see down the track. Q. But that is-that after you got within 50 feet of the track you didn't look? A. No, sir. Q. That is true...