Baltimore & O. R. Co. v. Daugherty

• Decision Date: 07 April 1953
• Docket Number: No. 18317,18317
• Parties: BALTIMORE & O. R. CO. v. DAUGHERTY.
• Court: Indiana Appellate Court

Page 483

111 N.E.2d 483

123 Ind.App. 373

BALTIMORE & O. R. CO. v. DAUGHERTY.

No. 18317.

Appellate Court of Indiana, in Banc.

April 7, 1953.

Charles A. Lowe, Lawrenceburg, for appellant.

William M. Turner, Lawrenceburg, Hartell F. Denmure, Aurora, for appellee.

ACHOR, Judge.

This is an action for damages arising out of a collision between a truck driven by appellee and one of the trains of the appellant in the City of Aurora. Verdict and judgment were for the appellee in the sum of $1,500.

Notwithstanding the sharp conflict in the evidence presented in this case, the sole question raised by the several assigned errors is whether or not the appellee was guilty of contributory negligence as a matter of law. The rule with regard to evidence necessary to establish negligence as a matter of law has been stated by this court as follows:

'Contributory negligence becomes a question of law only when the evidence most favorable to the plaintiff and all proper inferences therefrom are such that reasonable minds will agree that the injury complained of was the proximate result of the plaintiff's own negligence. D. Graff and Sons v. Williams, 1945, 115 Ind.App. 597, 61 N.E.2d 72. Where the facts are in conflict, or of such a character that reasonable minds may draw different inferences from them, then the question is one of fact to be determined by the jury. Gatewood et al. v. Lynch, 1939, 107 Ind.App. 168, 23 N.E.2d 289; Associated Truck Lines, Inc., v. Velthouse, 1949, 227 Ind. 139, 84 N.E.2d 54; Northwestern Transit, Inc., v. Wagner, 1945, 223 Ind. 447, 61 N.E.2d 591.'

Neuwelt v. Roush, 1949, 119 Ind.App. 481, 502, 85 N.E.2d 506, 515. See also, New York Central R. Co. v. Milhiser, Ind.Sup. 1952, 106 N.E.2d 453.

It is appellant's contention that appellee's own testimony, and other evidence most favorable to appellee, irrefutably proved appellee guilty of contributory negligence. In this regard, appellee testified that as he approached the intersection from the north, he stopped and looked at a point '20 feet or something like that from the track;' that appellant's railroad was visible to the west from said point a distance of 900 feet; that appellee looked but did not see a train; that he proceeded to cross the intersection at a speed of 'about three miles an hour;' that he could have stopped his truck within two or three feet. Another witness testified that the train approached from the west at speeds of 'about 50 or 60 miles per hour.' It is appellant's contention that if the physical circumstances surrounding the collision are accepted as being established by the above testimony, that these very circumstances prove with mathematical certainty that appellant's train was in sight at the time appellee stopped and looked; that in the very nature of things he must have seen it, and that appellee's failure to heed what he saw was contributory negligence as a matter of law.

Appellant further contends that even though we accept as true the inference that the train was not visible at the time he stopped and looked, it was appellee's duty to maintain a lookout for approaching trains as he proceeded into the intersection; that had he done so, he would have seen the train and could have stopped his truck before entering upon the tracks in the path of appellant's train. Appellant contends that appellee's failure to maintain such a lookout was contributory negligence as a matter of law.

Upon the issue presented by appellant's first contention, this court has stated:

'* * * It is well settled in this jurisdiction and elsewhere that the testimony of a witness which is opposed to the laws of nature, or which is clearly in conflict with principles established by the laws of science, is of no probative value and a jury is not permitted to rest its verdict thereon (numerous cases cited). This rule is frequently applied to the testimony of one who says he looked but did not see an object, which, if he had looked, in the very nature of things, he must have seen. However, where a court cannot say as a matter of law that the testimony of a witness is contrary to scientific principles, the law of nature or the physical facts, the question of whether such testimony does so conflict is one of fact for the jury to determine (cases cited).

'The appellant has made certain mathematical calculations based on distances and speeds as appear in the testimony of the appellee and seeks to demonstrate thereby that the appellee would have reached the curb in safety before the appellant's automobile reached any point in the street where the appellee possibly could have been hit. Therefore, says the appellant, the appellee...