Baltimore & O.S.W.R. Co. v. Rosborough
| Decision Date | 04 April 1907 |
| Docket Number | No. 5,953.,5,953. |
| Citation | 40 Ind.App. 14,80 N.E. 869 |
| Court | Indiana Appellate Court |
| Parties | BALTIMORE & O. S. W. R. CO. v. ROSBOROUGH. |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Gibson County; O. M. Welborn, Judge.
Action by John N. Rosborough against the Baltimore & Ohio Southwestern Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.
W. R. Gardiner, C. K. Tharp, C. G. Gardiner, L. C. Embree, and Edward Barton, for appellant. J. E. McGaughey, George W. Lackey, and Cullop & 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, which returned a verdict 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.
Substantial allegations of the complaint are that appellant is a corporation operating a line of railroad which passes through the city of Vincennes and crosses Second street in said city; that said crossing is located in a thickly populated portion of said city; that 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 15 miles an hour, striking appellee and dragging him 240 feet, and inflicting injuries because of which one arm wan 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 as to contributory negligence, in which connection these allegations will later 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 side tracks, making loud noises which prevented the approach of cars on its other track 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 doing so, he both looked and listened for the approach of trains, but that on account of said track being blocked with said cars and on account of said noise he could not see or 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”; the main track was 10 to 13 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 50 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 truck 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 its direction 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, 140 Ind. 261, 270, 38 N. E. 476;Cleveland, C., C. & I. R. Co. v. Harrington, 131 Ind. 426, 30 N. E. 37;Continental Improvement Co. v. Stead, 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. Thompson's Negligence, § 2. It is a requisite to the exercise of ordinary care by one about to go over a railroad grade crossing that he look and listen attentively both ways, and if by looking he could have seen and if by listening he could have heard, an approaching train in time to have avoided 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, Adm'x, 33 Ind. App. 264, 267, 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, Rec'r of the Terre Haute, etc., R. Co. v. Hawkins, Adm'x, 159 Ind. 127, 134, 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 selecting the place?” Malott, Rec'r of the Terre Haute, etc., R. Co. v, Hawkins, Adm'x, supra, page 135 of 159 Ind., page 311 of 63 N. E.; 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, Adm'r, 15 Ind. App: 210, 43 N. E. 1019;Chicago, etc., R. Co. v. Hedges, Adm'x, 105 Ind. 398, 409, 7 N. E. 801;Cleveland, etc., R. Co. v. Keely, by next friend, 138 Ind. 600, 607, 37 N. E. 406;Cleveland, etc., v. Miles, 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.” Greenwaldt v. Lake Shore, etc., R. Co., 165 Ind. 219, 223, 74 N. E. 1081; Stoy, Adm'r, v. Louisville, etc., R. Co., 160 Ind. 144, 152, 66 N. E. 615. The general verdict is only overcome by answers to interrogatories when such answers exclude every reasonable hypothesis consistent with the verdict which might have been proven under the issues. Southern Indiana R. Co. v. Peyton, Adm'r, 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 only be declared as matter of law 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, Adm'r, v. The Louisville, etc., R. Co., supra; Pittsburg, etc., R. Co. v. McNeil, by next friend, 34 Ind. App. 310, 317, 69 N. E. 471;Cleveland, etc., R. Co. v. Penketh, 27 Ind. App. 210, 60 N. E. 1095;Wabash R. Co. v. Biddle, 27 Ind. App. 161, 59 N. E. 284, 60 N. E. 12; Chicago, etc., R. Co. v. Hedges, supra; Thompson's Negligence, §§ 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”; 10 to 13 feet south of it was the “main track”; 8 or 9 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...
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