Cent. Indiana Ry. Co. v. Wishard

• Citation: 104 N.E. 593
• Decision Date: 13 March 1914
• Docket Number: No. 8191.,8191.
• Parties: CENTRAL INDIANA RY. CO. v. WISHARD.
• Court: Indiana Appellate Court

104 N.E. 593

CENTRAL INDIANA RY. CO.

v.WISHARD.

No. 8191.

Appellate Court of Indiana, Division No. 1.

March 13, 1914.

Appeal from Circuit Court, Tipton County; Leroy B. Nash, Judge.

Action by Ernest E. Wishard against the Central Indiana Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.U. C. Stover, of Indianapolis, and Dan Waugh, of Tipton, for appellant. Wymond J. Beckett and William F. Elliott, both of Indianapolis, for appellee.

HOTTEL, J.

Appellee filed in the court below a complaint in one paragraph in which he sought to recover damages for injuries to his person alleged to have resulted from a collision of appellant's cars with his automobile when he was attempting to cross the tracks of appellant's railroad at a street crossing in the city of Noblesville. A demurrer to the complaint was overruled. The only answer was a general denial. A trial by jury resulted in a verdict and judgment for appellee in the sum of $5,000.

Interrogatories were propounded to the jury, and its answers thereto were filed with the general verdict. A motion by appellant for judgment in its favor on such answers, and for a new trial, were each overruled. Exceptions to each of these rulings were properly saved, and such rulings are now assigned as error in this court.

Appellant, in its brief, has not presented the error assigned which challenged the ruling on said demurrer, and we therefore indicate only that part of the complaint necessary to an intelligent understanding of the other questions presented by the appeal. These averments are in substance as follows: Appellant's railroad runs east and west through the city of Noblesville, along and over Vine street in said city, and is crossed by Sixth street, which runs north and south in said city. At the intersection of said streets appellant, at the time of the occurrence complained of, maintained, in addition to its main track, a side track which ran parallel with and 8 1/2 feet north of the main track, a spur track which ran northeast and southwest across Sixth street about 24 feet north of the main track, and a switch track south of the main track which ran southeast and northwest across Sixth street. Beginning at the east line of Sixth street, and within 5 feet of the north side of said side track, and 13 1/2 feet north of said main track, there was located a coal shed 15 feet wide north and south which extended east parallel with the main track 300 feet. Extending northward from the west end of said coal shed 300 feet along the east line of Sixth street was a tight board fence 8 feet high. A freight car 8 1/2 feet high was standing on said side track, and its west end extended west over onto Sixth street 8 1/2 feet. The south side of this car was 5 feet north of said main track. The roadway of Sixth street at the point of its intersection with said tracks is 30 feet wide, and was much traveled and used by the citizens of said city for all kinds of travel in going to and from the factory district of said city, all of which was well known to appellant. On August 26, 1910, the appellee was alone in his automobile, driving it south in Sixth street, and when he reached the said spur track north of the main track he stopped his automobile, and looked and listened for approaching cars on appellant's track. While so situated appellant ran over its main line from the east a locomotive, with a freight car attached thereto, west across Sixth street. The movement of said engine and car and the operation of the machinery in the factories nearby made a great noise and confusion. Appellee held his automobile at said point where he stopped it until said engine and car had passed west beyond Sixth street, and then looked in both directions and listened for other cars that might be on defendant's tracks, and neither heard nor saw any car coming from either direction. He then carefully and cautiously started his automobile slowly toward the south and proceeded to cross said main track when his automobile was struck by a cut of cars running from the east over said main track. The negligence charged against appellant is as follows, viz.: It negligently placed and left standing on its side track said high freight car. It negligently and carelessly, and without notifying or warning appellee, ran a cut of freight cars from the east over its main track, without any bell or whistle attached thereto, against appellee's automobile with great speed, etc. It “negligently kicked or shunted or by means of what is known as a ‘flying switch’ ran said freight cars to the west over said crossing at a high rate of speed, without any engine attached thereto, and without any watchman on the west end of said cut of freight cars, and without any watchman at said street crossing to give warning to persons who might be crossing said Sixth street at the time; *** that, by reason of defendant's negligence in running said cut of freight cars across said highway as aforesaid, and by reason of defendant's negligence in failing to have a watchman or other person on the rear of said freight cars and a watchman at said street crossing to give warning of the approach of said freight cars, and control the speed of the same, and by reason of defendant's negligence in shunting or propelling said cars across said Sixth street by means of a flying switch, without any engine attached thereto to regulate and control its speed, and without any bell, whistle, or other signals attached thereto to give warning of the approach of said cut of freight cars, appellee was thereby induced to go upon said track; that, by reason of all of defendant's negligence, including the negligence of the defendant in standing said freight car projecting into said Sixth street as aforesaid, and leaving the same in said position so as to obstruct his view of approaching cars from the east, the plaintiff was injured as aforesaid, without his fault.”

[1] The first ground of its motion for a new trial presented by appellant is that of the insufficiency of the evidence to sustain the verdict. It is contended that the undisputed evidence is such as to require this court to say, as a matter of law, that appellee was guilty of contributory negligence. In support of this contention, it is argued that there is a distinction “between an automobile and a horse-drawn vehicle as to the precautions which a driver must take before attempting to cross railway tracks,” and that the courts should and in fact have “decided, as a matter of law, just what precautions should be taken by one operating an automobile for his own safety as well as that of the public.” In support of this position, appellant cites the following cases: Chase v. Cent. R. Co., 208 Mass. 137, 94 N. E. 377;New York, etc., R. Co. v. Maidment, 168 Fed. 21, 93 C. C. A. 413, 21 L. R. A. (N. S.) 794;Brommer v. Penn. Co., 179 Fed. 577, 103 C. C. A. 135, 29 L. R. A. (N. S.) 924;McFern v. Gardner, 121 Mo. App. 1, 97 S. W. 972;Spencer v. New York, etc., R. Co., 123 App. Div. 789, 108 N. Y. Supp. 245 (affirmed in 197 N. Y. 507, 90 N. E. 1166); In re Berry, 147 Cal. 523, 82 Pac. 44, 109 Am. St. Rep. 160;Fletcher v. Dixon, 107 Md. 420, 68 Atl. 875;Com. v. Boyd, 188 Mass. 79, 74 N. E. 255, 108 Am. St. Rep. 464;Lauson v. Town of Fond du Lac, 141 Wis. 57, 123 N. W. 629, 135 Am. St. Rep. 30;Com. v. Kingsbury, 199 Mass. 542, 85 N. E. 848, 127 Am. St. Rep. 513. Some of the cases, especially Brommer v. Penn. Co., supra, and New York, etc., R. Co. v. Maidment, supra, lend support to appellant's contention. It seems, however, that these cases have not been followed or approved by the courts of appeal of other jurisdictions; but, on the contrary, many of such courts, including those of our own state, expressly recognize that the same rule as to care at crossings should be applied to drivers of automobiles that is applied to drivers of other vehicles. Indiana, etc., Co. v. Love (Sup.) 99 N. E. 1005;Walters v. Chicago, etc., R. Co., 47 Mont. 501, 133 Pac. 357, 46 L. R. A. (N. S.) 702;Witmer v. Bessemer, etc., R. Co., 241 Pa. 112, 88 Atl. 314;Texas, etc., R. Co. v. Hilgartner (Tex. Civ. App.) 149 S. W. 1091, 1093;Noakes v. New York, etc., R. Co., 121 App. Div. 716, 106 N. Y. Supp. 522;Roby v. Kansas, etc., R. Co., 130 La. 880, 58 South. 696, 41 L. R. A. (N. S.) 355;Bush v. Philadelphia, etc., R. Co., 232 Pa. 327, 81 Atl. 409;Dickinson v. Erie R. Co., 81 N. J. Law, 464, 81 Atl. 104, 37 L. R. A. (N. S.) 150.

While it may be true, as appellant contends, that the character of the vehicle in such cases should have some influence on the question of the care to be used by its driver at such crossings, yet in its last analysis the ultimate question in every case is always the same, viz.: Did the person attempting to cross the track use that degree of care which an ordinarily prudent person would have used situated and circumstanced as the person who attempted to cross the track, whether on foot, on horseback, in a wagon, carriage, automobile, or any other vehicle?

[2] Such question, generally speaking, is one of fact for the jury, and not one of law for the court, and it is only where the evidence on such question is such as to force on all reasonable and fair-minded men a conclusion different from that reached by the jury that this court will substitute its judgment for that of the jury on such question. Wabash R. Co. v. McNown, 99 N. E. 126, 130;Cleveland, etc., R. Co. v. Nichols, 99 N. E. 497, 498, 499, and cases cited; Pittsburgh, etc., R. Co. v. Broderick, 102 N. E. 887, 891;Malott v. Hawkins, 159 Ind. 127, 63 N. E. 308.

[3] It is entirely proper for the trial court in its instructions, to advise and direct the jury that in the consideration of such question it should take into account the character of the vehicle in which the injured party was riding, and the manner and method of its operation and control, etc.; but, when such court in any case attempts to fix a standard or quantum...