Callahan v. New York Cent. R. Co.

• Decision Date: 25 March 1955
• Docket Number: No. 18613,18613
• Parties: John P. CALLAHAN, Administrator of the Estate of Harry A. Patterson, Deceased, Appellant, v. NEW YORK CENTRAL RAILROAD COMPANY, Appellee.
• Court: Indiana Appellate Court

Page 263

125 N.E.2d 263

125 Ind.App. 631

John P. CALLAHAN, Administrator of the Estate of Harry A Patterson, Deceased, Appellant, v. NEW YORK CENTRAL RAILROAD COMPANY, Appellee.

No. 18613.

Appellate Court of Indiana, In Banc.

March 25, 1955.

Hansford C. Mann, Robert J. McPeak, Terre Haute, Kenneth C. Miller, Brazil, for appellant.

Harvey L. Fisher, Brazil, Jerdie D. Lewis, Terre Haute, for appellee.

KENDALL, Judge.

This is an action for wrongful death of appellant's decedent, Harry Patterson, on January 13, 1950, at approximately 11:00 a. m., at Haythorne Street Crossing, east of Terre Haute, Indiana.

Appellant contends that the decedent was riding in a truck operated by Kendall Hooker while appellee contends that there was no evidence whether Mr. Hooker was driving or not. Other occupants of the truck were Mrs. Hooker and their two children. All five occupants were killed.

The truck in which the decedent was an occupant was proceeding in a westerly direction approaching Haythorne Street Crossing. The appellee's train tracks were dual and ran generally in a northeasterly and southwesterly direction. Approximately one-half mile southwest of Haythorne Street Crossing is another railroad crossing known as Fruitridge Crossing. Fruitridge Road runs in a northerly and southerly direction.

Appellant's amended complaint alleges four acts of negligence; however, on appeal, appellant relies upon the following two specific acts:

(a) In running the train across Haythorne Avenue at the dangerous rate of speed of 78 miles-per-hour without sounding any whistle or bell or warning of its approach;

(f) In permitting bushes, vines and undergrowth on its right-of-way to obstruct the view of persons traveling west, by reason of the fact that the street east of the crossing is approximately ten feet lower than the tracks.

The appellee filed appropriate answers, the second paragraph of which alleged that the sole proximate cause of the collision was the negligence of the truck driver. The cause was tried by jury. At the close of all the evidence, the court sustained appellee's motion for a directed verdict, to which appellant made timely objections. Judgment was rendered upon the verdict of the jury in favor of appellee.

Motion for new trial was filed specifying that the verdict of the jury was contrary to law; that the court erred in sustaining appellee's motion for a directed verdict made at the close of the evidence and that the court erred in giving to the jury a peremptory instruction directing the jury to return a verdict in appellee's favor.

The assignment of error is the overruling of appellant's motion for new trial.

We are therefore confronted with the question, Did the trial court err in sustaining the motion for a peremptory instruction in favor of appellee at the close of all the evidence?

Courts of appeal have frequently been called upon to determine when a trial court may properly give the jury such an instruction. The general rule now recognized is that a peremptory instruction may be given when there is a total absence of evidence or legitimate inferences in favor of the plaintiff upon an essential issue or where the evidence is without conflict and is susceptible of but one inference and that inference is in favor of the defendant. Whitaker v. Borntrager, Ind.1954, 122 N.E.2d 734, and cases cited. It is a well-recognized rule in determining whether a peremptory instruction should be given, the court must accept as true all facts which the evidence tends to prove and draw against the party requesting such instruction, all inferences which the jury might reasonably draw. Holtz v. Elgin, etc., Ry. Co., 1951, 121 Ind.App. 175, 98 N.E.2d 245; Chacker v. Marcus, 1949, 119 Ind.App. 672, 86 N.E.2d 708; R.D.1950, 89 N.E.2d 455; Whitaker v. Borntrager, supra. Likewise, when there is some evidence or legitimate inferences supporting each material allegation of the complaint, the court will not weight the conflicting evidence or inferences but will consider only the evidence and inferences that are most favorable to the party against whom the peremptory verdict is directed. Jackson Hill Coal & Coke Co. v. Bales, 1915, 183 Ind. 276, 108 N.E. 962; Whitaker v. Borntrager, supra.

With these general principles of law in mind, we proceed to consider the complaint, the evidence and inference, if any, in support of appellee's motion.

To support the acts of negligence alleged, appellant's evidence showed that John P. Callahan was driving north on Fruitridge Avenue when he first saw the train approaching Haythorne Crossing; that he likewise saw the truck approaching the crossing from the east; that the train was going 75 to 80 miles-per-hour and the truck was going 15 miles-per-hour; that Fruitridge Crossing was approximately one-half mile southwest of Haythorne Crossing; that the train traveled over half of the distance between the two crossings before Mr. Callahan saw sparks flying from the wheels which was when the train applied the brakes. In regard to whether or not Mr. Callahan heard the train whistle, he was asked the following questions:

'Q. Did this train whistle for the crossing, Mr. Callahan? A. No sir.

'Q. Were there any bells ringing at any time? A. No sir.

'Q. You didn't hear any bells at any time? A. No sir.

'Q. You were observing this train, were you? A. Yes, sir.

* * *

* * *

'Q. Did you see any steam emitting from the top of the engine as if the whistle was blowing? A. No sir.'

On cross examination, the following questions were asked and answers given:

'Q. You were driving north approaching the crossing. Were your windows up or down? A. Open, sir.

'Q. The front windows? A. The two little ventilators were open, and Mr. Knipmeyer's window was. I don't know how much it was open.'

There was evidence that the train's lights were on when approaching the crossing; that approximately fifteen minutes before the accident, the truck involved had pulled into a service station for gas, at which time Mr. Hooker was driving. The decedent was sitting in the truck opposite the driver, next to the door, holding the bigger of the two Hooker children, while Mrs. Hooker was holding the other one. Mr. Knipmeyer testified he saw the accident occur and that the train stopped half-way between the two crossings and that the window nearest him was down.

On direct examination, the following questions and answers were given by Mr. Knipmeyer:

'Q. Did you hear the crash? A. No, sir.

'Q. Did you hear the whistle blow? A. No, sir.'

On cross examination, in respect to the view of the train tracks to the northeast, Mr. Knipmeyer testified as follows:

'Q. Isn't it a fact, Mr. Knipmeyer, that you can stand at a point 300 feet east of the tracks at Haythorne crossing and look up to the northeast and see the rails for at least a quarter of a mile or so? A. From 300 to 400 feet you can see the rails on the track.

'Q. And isn't it true that within all points several hundred feet of the crossing to the northeast is unobstructed for the traveler coming from the east going west? A. You can still see.

'Q. And I will ask you if it isn't true that anyone on January 13, 1950, the day this happened, who was traveling from the east going west on Haythorne from 300 feet east of the approach of that crossing see for a distance of a half mile or over? A. No, not no half mile.

'Q. For a quarter of a mile? A. Maybe he would be able to see that far.'

The appellant...