Baltimore & O.R. Co. v. Talmage
| Decision Date | 06 May 1896 |
| Citation | 15 Ind.App. 203,43 N.E. 1019 |
| Parties | BALTIMORE & O. R. CO. v. TALMAGE. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from circuit court, Porter county; John N. Gillett, Judge.
Action by Oromell G. Talmage, administrator, against the Baltimore & Ohio Railroad Company, for death of his intestate. From a judgment for plaintiff, defendant appeals. Reversed.
J. H. Collins and W. H. Dowdell, for appellant. E. D. Crumpacker and Grant Crumpacker, for appellee.
The appellee recovered judgment in the court below for $1,975. Assuming, without deciding, that appellant is shown to have been guilty of actionable negligence in running the passenger train so close upon the engine at a speed of 40 miles per hour, which was the proximate cause of the death of said Yound, the appellant insists that the undisputed evidence clearly shows that negligence on the part of the decedent contributed to her own injury.
The material facts on this question, considered most favorably in behalf of the appellee, are substantially as follows: At about one-half mile east of a station called “Alida,” in Porter county, the appellant's railroad crosses a highway. The railroad runs due east and west, the highway north and south, and they cross each other at right angles. On the north of the railroad, and west of the highway, the view to the west, on the day of the injury, was obstructed by a high hedge fence, a barn, and a house, the east side of which stood within 60 feet of the railroad track, and by a train of freight cars, which stood upon a side track, which side track came within about 75 feet of the crossing. On the highway, 80 rods north of the railroad, and from thence to the crossing, the view to the east from the highway at all points was unobstructed, and an approaching train from the east could be seen for the distance of 2 miles. On the 25th day of October, 1892, the deceased was traveling along the highway, going south. She was in a top buggy, drawn by a single horse. At about 5 o'clock in the afternoon of said day, she approached the crossing. The weather was cloudy and misty, and considerable wind was blowing from the southwest at the time. The top of the buggy was raised, and the side curtains were drawn, to protect her from the rain and wind. When she approached within 160 feet of the track, a locomotive in charge of appellant's servants passed over the crossing, at the rate of about 35 miles per hour, running from the east to the west. A passenger train was following the engine, running at about the rate of 40 miles per hour, and not less than one-half mile behind the engine. After the engine passed over the crossing, and without looking towards the east, the decedent drove along the highway in a walk upon the crossing, where she was struck by the engine drawing the passenger train, and killed. In time, there was an interval of one minute between the engine and the train. It is conceded that said decedent had her faculties of seeing and hearing unimpaired; that she was familiar with said crossing and surroundings; and that, had she looked to the east at any time after the first locomotive passed, she would have seen the train approaching.
The general rule applicable to crossing cases, and the exception thereto, are fully discussed by Judge Gavin in Railroad Co. v. Cox, 8 Ind. App. 29, 35 N. E. 183. In that case both the road and the railroad ran through cuts, so that the approaching train could not be seen by Cox if he had looked in that direction, until he was within 35 feet of the track. When he could have first seen the train, it was less than 120 feet distant. There was then less than four seconds of time before the collision in which he could have seen the approaching train if he had looked in that direction. In fact, he did look in that direction when he was within 10 feet of the track, and saw the train, then within 50 or 60 feet of the crossing. In this case the decedent could have seen the train when she was more than 160 feet from the track, and could have seen it at any time thereafter before she reached the crossing, if she had once looked in that direction. The train was not less than one-half mile distant when the engine crossed the highway, and there was fully one minute of time, as found by the jury, after the engine crossed the highway, in which she would certainly have seen the train, if she had at any point looked once in that direction. In fact, as we understand the evidence, it clearly appears that a person on the highway 80 rods north of the crossing, and thence all the way to the crossing, could see a train coming from the east for two miles; so that the decedent, at any time after the train came within two miles of the crossing, could have seen it if, at any point on the highway within 80 rods of the crossing, she had looked in the direction of the approaching train. At any time after the engine came within a mile of the crossing, she could have seen both the engine and the train, if she had looked in that direction. When the first engine whistled for the crossing, the passenger train, which was a half mile behind it, was evidently within the range of her vision, if she had looked in that direction. The exception to the general rule stated in the Cox Case has been recognized by the supreme court in other cases. Smith v. Railway Co. (Ind. Sup.) 40 N. E. 271;Oleson v. Railroad Co. (Ind. Sup.) 42 N. E. 736;Miller v. Railroad Co. (Ind. Sup.) 43 N. E. 257. See concurring opinion of the writer in Shirk v. Railway Co. (Ind. App.) 42 N. E. 656-660, and authorities therein cited. In all these cases, however, the rule is recognized that the negligence of the company does not excuse the traveler approaching a railroad crossing from exercising ordinary care. The question is as to what constitutes ordinary care under the circumstances of each particular case. It is conceded that, if different inferences may reasonably be drawn from the circumstances in a given case, the question of contributory negligence is for the jury.
The sole and only thing done by the company in this case from which the inference can be drawn that the decedent was misled by the company in her attempt to cross the railroad at the time she was hurt, is the fact that there was only an interval in time after the engine crossed the highway of one minute before the train reached the crossing. It is not claimed that she was in any manner misled or deceived by the rate of speed of the train. All that can be claimed for her on this branch of the case is that she had the right to rely on the presumption that no train would follow the engine from the east within one minute after the engine crossed the highway. The negligence, if any, on the part of the company, consists in running the train so close upon the engine. No statute or ordinance was being violated by the company. All the statutory signals were duly given by both the engine and the passenger train. Others not more favorably located heard the signals, and saw the train in ample time for Mrs. Yound to have avoided the collision. Are the circumstances in this case such as to warrant the inference by the jury that she was in the exercise of due care in attempting to cross the railroad without looking towards the east? It is true that, if the facts and circumstances under which the traveler approaches the crossing are such as are reasonably calculated to mislead him, and such as would naturally create in his mind a sense of security, and a belief that there is no danger to such an extent that a man of prudence would ordinarily act upon such belief, the reason for the rule which requires him to look and listen both ways fails. He is under such circumstances entitled to the application of the exception to the general rule recognized in the Cox Case. This exception cannot be extended beyond reasonable limitations. It cannot relieve the traveler from the exercise of due care. It only lessens the quantum of care required by the general rule. The fact that the decedent in this case may have believed that no train would follow within one minute after the engine did not entirely relieve her from the exercise of care in approaching the crosssing.
The question remains, what was ordinary care under the surrounding circumstances? Had she the right, simply because the engine crossed the highway, to believe that there was no danger incident to thereafter crossing the railroad track? Did the fact that she may have apprehended that the freight train standing on the switch might at once start east on the main track (although this apprehension was unfounded), across the highway, justify her in giving her constant and exclusive attention to the west? Are the circumstances such as to excuse her entirely from looking east at any time after the passenger train came in sight? If, after the passing of the engine, the time in which she could have seen the approaching train from the east had been briefer, the distance over which she traveled before reaching the crossing shorter, or the view obscured, as in the Cox Case, the question would have been for determination by the jury. It should be remembered, however, that the country was level, and that there was nothing to obstruct her view of the approaching train at any point, at any time, after the engine crossed the highway, or for some time before the engine crossed the highway. After the engine crossed the highway, she continued to drive in a walk for the space of one minute, and for a distance of 160 feet; and, therefore, can she be said to have been suddenly put in such peril by the approaching train as caused her, while acting under the impulse of apparently well-grounded fear, to drive upon the track in an effort to escape from danger? Railway Co. v. Burton, 139 Ind. 357, 370, 37 N. E. 150, and 38 N. E. 594; Railroad Co. v. Butler, 10 Ind. App. 244, 253, 38 N. E. 1;Pennsylvania Co. v. Stege-meier, 118 Ind. 305, 20 N. E. 843;Railway Co. v....
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