Baltimore & Ohio Southwestern Railway Company v. Rosborough
| Decision Date | 04 April 1907 |
| Docket Number | 5,953 |
| Citation | 80 N.E. 869,40 Ind.App. 14 |
| Court | Indiana Appellate Court |
| Parties | BALTIMORE & OHIO SOUTHWESTERN RAILWAY COMPANY v. ROSBOROUGH |
From Gibson Circuit Court; O. M. Welborn, Judge.
Action by John N. Rosborough against the Baltimore & Ohio Southwestern Railroad Company. From a judgment for plaintiff defendant appeals.
Affirmed.
Gardiner Tharp & Gardiner, Edward Barton and L. C. Embree, for appellant.
J. E McGaughey, George W. Lackey, W. A. Cullop and George W. Shaw, for appellee.
Action by appellee. The complaint is in one paragraph, to which appellant answered the general denial. The issue thus formed was submitted to the jury, and a verdict was returned against appellant for $ 3,500 upon which judgment was subsequently rendered.
Errors assigned are directed to the action of the trial court in overruling appellant's motion for judgment upon answers to interrogatories returned with the general verdict, and in overruling its motion for a new trial.
The allegations of the complaint are, in substance, that appellant is a corporation operating a line of railroad which passes through the city of Vincennes, and crosses Second street in said city. Said crossing is located in a thickly populated portion of said city, and said street is one of its thoroughfares and much traveled. Appellant's railroad at said point consists of four parallel tracks. On June 29, 1904, appellee attempted to cross said tracks. Appellant made a flying switch at a point about 300 feet east, and drove a detached car west along its main track with such force that it crossed Second street at a speed of fifteen miles an hour, striking appellee and dragging him 240 feet, inflicting injuries, because of which one arm was amputated at the shoulder. It is also alleged that no warning of the approach of said car was given. Certain ordinances, limiting the speed of cars and declaring it unlawful to run any car backward through said city without a lookout, are copied, but, no question being made as to appellant's negligence, the detail of the charge against it is not now material, except as it may bear upon the question of contributory negligence, in which connection these allegations will be referred to again. It is further alleged that at said time appellant had cars stationed on its said track east of said crossing which prevented persons using it from seeing east along the track; that it was switching cars on one of its sidetracks, making loud noises which prevented the approach of cars on its other tracks from being heard; that it maintained a watchman at said crossing, who negligently failed to warn appellee of the approach of said detached car. He further alleges that before attempting to cross said track, and while crossing, he looked and listened for the approach of trains, but, on account of said tracks being blocked with said cars, and on account of said noise, he could not see nor hear the detached car which struck him, and, by reason of the negligence of said watchman in failing to warn him, he was run upon before he had any knowledge of its presence. The facts stated in answer to the interrogatories are that Second street in the city of Vincennes extends north and south, and was crossed by three tracks of appellant's railroad on the day appellee was injured. The north track was called the "passing track," and the main track was ten to thirteen feet south of the passing track. Appellee was walking south along the sidewalk on the west side of Second street across said tracks at the time of and immediately before his injury. He was struck and dragged by a coal-car running west on the main track. Second street was about fifty feet wide at said crossing. Third street crosses said railroad 300 feet east of Second street. After appellee crossed the passing track and before he went upon the main track he could by looking east have seen along the main track to Third street. Immediately before stepping upon the main track he could by looking east have seen the coal-car that injured him. Said coal-car started at a point on the main track as far east as Third street and ran westward until it struck appellee on the west side of Second street. Appellee walked upon the main track in front of the car as it was running across Second street. Had he not done so he would not have been injured, and if he had looked in the direction of said car he could have seen its approach immediately before he walked upon the main track.
"'The law requires, and all that it does require is, that a person approaching a railroad crossing upon a public highway, shall use ordinary care to avoid injury.'" Lake Shore, etc., R. Co. v. McIntosh (1895), 140 Ind. 261, 270, 38 N.E. 476. See, also, Cleveland, etc., R. Co. v. Harrington (1892), 131 Ind. 426, 30 N.E. 37; Continental Improv. Co. v. Stead (1877), 95 U.S. 161, 24 L.Ed. 403. Ordinary care is such care as a reasonable and prudent man would or should use under the same or similar circumstances. 1 Thompson, Negligence (2d ed.), § 2. It is a requisite to the exercise of ordinary care by one about to go over a railroad grade crossing that he look both ways and listen attentively, and if by looking he could have seen, and if by listening he could have heard an approaching train in time to avoid collision, it is presumed, if such collision occurs, that he either did not look and listen or did not heed what he saw and heard, in either of which events he is guilty of contributory negligence. Chicago, etc., R. Co. v. Turner (1904), 33 Ind.App. 264, 69 N.E. 484. Such person is also required to use ordinary care in selecting a place from which to look and listen, so that he can do so effectively. Malott v. Hawkins (1902), 159 Ind. 127, 63 N.E. 308. "It is not ordinarily possible, however, to affirm, as a matter of law, the precise number of feet from the crossing at which the traveler must look and listen, the underlying test being, did the traveler exercise ordinary care, in view of the danger, in selecting the place?" Malott v. Hawkins, supra. See, also, Chicago, etc., R. Co. v. Turner, supra. Merely failing to look east while he was going the distance named does not amount to contributory negligence as a matter of law. Baltimore, etc., R. Co. v. Talmage (1896), 15 Ind.App. 203, 43 N.E. 1019; Chicago, etc., R. Co. v. Hedges (1886), 105 Ind. 398, 409, 7 N.E. 801; Cleveland, etc., R. Co. v. Keely (1894), 138 Ind. 600, 607, 37 N.E. 406; Cleveland, etc., R. Co. v. Miles (1904), 162 Ind. 646, 70 N.E. 985. "If the facts exhibited are of a character to be reasonably subject to more than one inference or conclusion, under established rules of law, then the ultimate facts of contributory negligence, or due care, should be determined by the jury." Greenawaldt v. Lake Shore, etc., R. Co. (1905), 165 Ind. 219, 74 N.E. 1081. See, also, Stoy v. Louisville, etc., R. Co. (1903), 160 Ind. 144, 66 N.E. 615. The general verdict is overcome by answers to interrogatories only when such answers exclude every reasonable hypothesis consistent with the verdict, which might have been proved under the issues. Southern Ind. R. Co. v. Peyton (1902), 157 Ind. 690, 61 N.E. 722. The answers to the interrogatories in the case at bar do not show that appellee did not look and listen. They show that he did not look to the east while between the passing track and the main track. His failure to look east while between such tracks may amount to contributory negligence, but such negligence can be declared as matter of law only when the answers show attending conditions so fully as that it can be said that he did not use ordinary care in selecting a place from which to look. The general verdict finds that due care was used by him in that behalf, and the facts specially returned do not exclude the existence of circumstances warranting such conclusion. A correct disposition was therefore made of the motion for judgment. Stoy v. Louisville, etc., R. Co., supra; Pittsburgh, etc., R. Co. v. McNeil (1904), 34 Ind.App. 310, 69 N.E. 471; Cleveland, etc., R. Co. v. Penketh (1901), 27 Ind.App. 210, 60 N.E. 1095; Wabash R. Co. v. Biddle (1901), 27 Ind.App. 161, 59 N.E. 284; Chicago, etc., R. Co. v. Hedges, supra; 2 Thompson, Negligence (2d ed.), §§ 1624, 1625. It is insisted that the evidence does not sustain the verdict, in that it shows appellee to have been contributorily negligent. Salient facts disclosed by the record are as follows: The railroad at said crossing consisted of four tracks. The north was known as the "passing track," ten to thirteen feet south of it was the "main track," eight or nine feet south of the main track was the "scale track." Still further south, and not involved in this occurrence, was the "oil track." There was a curve in the main track between Second and Third streets. The latter street was 300 feet east of the former one. There were buildings in the vicinity, but, in the absence of a map and accurate description, other details cannot be given. There was a sidewalk on the west side of Second street. The street was much traveled. A street-car line occupied a portion of it. Appellee was walking south toward the central part of the city and along said sidewalk. When he came to the crossing he saw a number of cars standing upon the passing track. He looked both east and west, but saw no train or cars on the main track. The scale track was occupied by a freight-train, which obstructed the street, but was moving east and about to vacate the crossing. Appellee went south, expecting to cross the scale track, as it was vacated, and evidently giving attention to the moving train. Appellant kept a watchman at said crossing. His house or booth was south of the scale track. He stood in front of it, and was engaged in conversation with...
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