Baltimore & O. R. Co. v. Patrick

• Citation: 131 Ind.App. 105,166 N.E.2d 654
• Decision Date: 22 April 1960
• Docket Number: No. 19038,No. 1,19038,1
• Parties: BALTIMORE AND OHIO RAILROAD COMPANY, a corporation, James Buehler and Curtis Terrell, Appellants, v. Sylvia M. PATRICK, Administratrix of the Estate of John O. Patrick, Deceased, Appellee
• Court: Court of Appeals of Indiana

Page 654

166 N.E.2d 654

131 Ind.App. 105

BALTIMORE AND OHIO RAILROAD COMPANY, a corporation, James

Buehler and Curtis Terrell, Appellants, v. Sylvia M. PATRICK, Administratrix of the Estate of John O.

Patrick, Deceased, Appellee.

No. 19038.

Appellate Court of Indiana, Division No. 1.

April 22, 1960.

Rehearing Denied May 27, 1960.

Martz, Beattey & Wallace, Indianapolis, for appellants.

H. Harold Soshnick, Shelbyville, Aribert L. Young, Armstrong, Gause, Hudson & Kightlinger, Indianapolis, for appellee.

MYERS, Chief Justice.

This is an appeal from a judgment of the Shelby Circuit Court in an action originally brought by John O. Patrick against the appellants, asking damages for personal injuries suffered as the result of a collision between an automobile in which Patrick was riding as an occupant and a train operated by employees of the Railroad Company. Judgment was rendered in favor of Patrick against appellants in the sum of $15,000. Since the date of judgment, and prior to the perfection of this appeal, Patrick died of natural causes not related to the accident. By order of the Shelby Circuit Court, his sister, Sylvia M. Patrick, Administratrix of his Estate, was substituted as party appellee herein.

The material allegations set forth in appellee's decedent's amended complaint are substantially as follows: On January 5, 1954, at about 1:30 p. m., John O. Patrick (hereinafter called John) was riding as a passenger in a car being operated by Mary Patrick (hereinafter called Mary), his sister-in-law. The car was being driven on a county road in Jackson County, Indiana, across the tracks of appellant Railroad Company, which crossing was known as the 'Shieldtown Crossing.' At that time and place a train operated by employees of the Railroad Company negligently backed into and struck the car, causing injury to John. The Railroad Company was charged with negligence and carelessness in the following particulars: That it failed to sound the whistle on the engine distinctly not less than three times beginning not less than 80 rods east of the crossing; that it failed to sound the whistle on the engine repeatedly until the engine reached the crossing; that it failed to ring a bell continuously from the time the whistle sounded until the engine fully passed the crossing; that it failed to give any warning of the approach of the train which was 'quietly' backing onto the crossing; that it failed to stop the train in time to avoid a collision upon seeing John at the crossing; that it failed to keep a proper lookout; that it failed to keep the train under reasonable control as it approached the crossing; that it failed to keep proper warning signs or devices on the highway north of the crossing. It was alleged that all of said negligence proximately caused the collision which resulted in permanent injuries to John.

To this amended complaint, appellants filed three paragraphs of answer in which they denied the allegations, asserted affirmative defenses of contributory negligence on the part of both John and the driver, joint venture and imputed negligence to the plaintiff John. They also stated that the issues had been determined in a previous lawsuit litigated in the United States District Court for the Southern District of Indiana, wherein in a jury found in favor of the Railroad Company as a defendant and against Mary and Paul Patrick, her husband (hereinafter called Paul), as plaintiffs, based upon the same set of facts which is the subject-matter of this lawsuit. A reply in general denial was filed to these affirmative answers.

Upon the issues being thus joined, the cause was submitted for trial by jury. At the conclusion of the evidence certain interrogatories were propounded to the jury by appellants and answers to the same were returned. The finding and general verdict was given by the jury in favor of John in the sum of $15,000 and judgment was entered accordingly. Appellants filed their motion for a new trial, which was overruled, and this appeal followed.

A brief summary of the facts most favorable to the appellee show that Mary and Paul were husband and wife and residents of Indianapolis. They drove down to the little town of Surprise, Indiana, on January 4, 1954, because of the death of Paul's mother who lived there. They stayed overnight at the home place. Paul's brother, John, appellee's decedent herein, was also there, having lived with his mother prior to her death. The morning of January 5th, John, Paul, and a sister received friends and relatives at the house in Surprise. The body of the mother was at a mortuary in Seymour, Indiana. They were planning to go into Seymour to be at the mortuary around 2:00 o'clock. John had originally intended to drive in with his sister, but she departed early so he arranged to go with Paul and Mary. They left about noon, with Mary driving the car and the two men sitting in the front seat beside her, John being on the outside next to the door.

The distance from Surprise to Seymour is approximately eleven miles by blacktop road. After leaving the home place they decided to take a narrow county road which goes down along White River and is known as the 'River Road.' The reason they did this was because John wanted to show Paul a camp site along the river and they had time to spare before they were due at the mortuary. They made a short stop of about five minutes' duration along the river and the two men got out of the car and looked around. They then re-entered the car and started toward Seymour.

There was a 360-feet-long covered bridge which crossed White River along this road. It was constructed of wood, with wooden planks as flooring. Some of the planks were not fastened down and were loose. The direction of the bridge was northsouth. The road led to the crossing of the railroad tracks belonging to appellant Railroad Company. The distance from the south end of the bridge to the tracks, which ran in an east-west direction, was 153 feet. This was known as the 'Shieldtown Crossing.'

Mary drove the car through the bridge at a speed of approximately 15 to 20 miles per hour. At the same time, the employees of appellant Railroad Company were operating a train consisting of two freight cars, a caboose, and a steam locomotive, traveling westward from Seymour to Brownstown on the tracks leading to the Shieldtown Crossing. The cars were coupled to the head end of the locomotive, which was pulling them in reverse. The coal tender was the lead end of the train as it went down the tracks. A fireman and engineer, appellants herein, were in control of the engine, which was traveling at a speed of between 15 and 20 miles per hour.

When the automobile with the Patricks emerged from the bridge, the train was to their left, approximately 150 feet away from the crossing. Both the train and the car arrived there at the same time, with the result that there was a collision, and all the Patricks were injured thereby. While the sun was not shining, the day was clear and visibility was good. There was a partially clear view to the east from the south end of the bridge, and the jury specifically found that if John had looked to his left or to the east when they came out of the covered bridge, the train would have been within view. However, Mary testified that the first time she saw the train was when she was on the tracks at the crossing just before it struck. She looked to her left and saw a 'wall of steel.' The engineer testified that the first time he was conscious of an accident was when he heard the crash and saw the car come from behind on his side. The fireman likewise testified that he never saw the automobile before it was struck. Both the engineer and the fireman were sitting facing the rear of the train due to the fact that the locomotive was backing at the time. In order to see the track before them they had to turn their heads and look out the cab windows.

In their motion for new trial appellants allege that error was committed by the trial court in sustaining appellee's motion to withdraw from submission to the jury the affirmative allegation of defense set up in appellants' third paragraph of answer; in excluding from evidence certified copies of the proceedings in the United States District Court for the Southern District of Indiana; in overruling appellants' motion for a directed verdict at the conclusion of plaintiff's evidence; in overruling appellants' motion for a directed verdict in favor of appellants at the conclusion of all the evidence; in the giving of certain instructions tendered by the plaintiff; and in refusing to give certain instructions tendered by the defendants. They also claimed that the verdict was not sustained by sufficient evidence and was contrary to law; that it was in irreconcilable conflict with the answers to interrogatories made by the jury; and that the damages were excessive. In their assignment of errors appellants claim that error was committed in overruling the motion for a new trial, in refusing to give defendants' tendered Instruction No. 70, and in giving the court's Instruction No. 34.

At the close of the trial certain interrogatories were propounded to the jury by appellants, and answers were given thereto. The pertinent interrogatories and answers as contained in the Argument section of appellants' brief are as follows:

'15. Was the plaintiff aware that a railroad crossing was immediately ahead of the vehicle after coming out of the covered bridge? Yes.

'17. Was the whistle on the engine blown prior to the time of entering the intersection of the Shieldtown Road and the Baltimore and Ohio track? Yes.

'18. Was the bell ringing? Yes.

'19. Was the headlight on the engine burning? We do not know whether the headlight on the engine was burning or not, but according to the testimony given the light on the tender was burning.

'22. Was there a clear view to the east, the direction from which the train was approaching, to...