Cent. Indiana Ry Co. v. Wishard

Citation114 N.E. 970,186 Ind. 262
Decision Date30 January 1917
Docket NumberNo. 22762.,22762.
PartiesCENTRAL INDIANA RY CO. v. WISHARD.
CourtSupreme Court of Indiana

OPINION TEXT STARTS HERE

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 appealed to the Appellate Court, from which the case was transferred to the Supreme Court (108 N. E. 35). Judgment affirmed.U. C. Stover, of Indianapolis, and Dan Waugh, of Tipton, for appellant. Wymond J. Beckett and Wm. F. Elliott, both of Indianapolis, for appellee.

LAIRY, C. J.

Appellee recovered a judgment against appellant for damages on account of injuries to his person, caused by a collision of appellant's cars with appellee's automobile when he was crossing appellant's tracks at a street crossing in the city of Noblesville. The record shows that the tracks of appellant in the city of Noblesville run east and west along and within the limits of Vine street, and that Sixth street in said city runs north and south, and crosses Vine street and appellant's tracks practically at right angles. In addition to its main track appellant maintained two switch tracks, one north and the other south of the main track, and also a spur track north of the main track, all of which crossed Sixth street. There were a coal shed and other obstructions near the crossing, and, at the time of the injury to appellant, a freight car 8 1/2 feet in height was standing on the north side track, the west end of which extended into Sixth street a distance of 8 1/2 feet. Appellee was driving his car south on Sixth street, and was attempting to cross the tracks on Vine street, when his automobile was struck by a cut of cars which were approaching from the east. The negligence charged against appellant by the complaint is that it negligently left said freight car standing on its side track in the street; that it negligently and carelessly, and without notifying 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; that it negligently kicked or shunted, or by means of what is known as a flying switch “ran, said freight cars toward the west and across said crossing, without any engine attached thereto, and without any watchman on the west end of said cut of cars, and without any watchman at said street crossing.” The errors assigned, and not waived, are the overruling of appellant's motion for a new trial and the overruling of its motion for judgment on the interrogatories notwithstanding the general verdict.

Appellant asserts that the answers to interrogatories show affirmatively that appellee was guilty of contributory negligence. As bearing on this question, such answers show that appellant was acquainted with Sixth street crossing over appellant's tracks; that before he turned into Sixth street he had seen the engine and cars at Eighth street, which is about 400 feet east of Sixth street; that he approached the crossing with his engine in high gear, but at low speed, and stopped it on the east side of Sixth street at a point 30 feet north of the main track; that Sixth street is 50 feet wide, and that there was nothing to prevent him from stopping his car on the west side of the street; that a fence and a shed 10 feet high along the east side of Sixth street extended to a point within 7 feet of the side track, and that appellant knew of said fence and shed; that there was a coal car 8 or 9 feet high standing on the side track at the east side of Sixth street, with its west end extending 8 or 9 feet into Sixth street and that the center of the side track was 13 feet north of the center of the main track; that appellee heard the engine and cars coming toward Sixth street from the east, and while his automobile was stopped the engine and one car passed over Sixth street; that the seat on appellee's automobile was 4 or 5 feet back of the front end of the car, and when seated therein his eyes were about 5 1/2 feet above the ground; that, with little inconvenience appellee could have alighted from his automobile and gone forward and ascertained whether other cars were following the engine and car which had passed; that he did not rise up or change his posture, so as to obtain a better view of the tracks in either direction, before driving upon the tracks; that he did not stop the motor while his car was standing, and that it made a noise while running; that after the engine and car had passed the crossing appellee put his car in motion, but not immediately, and was proceeding at about 4 miles per hour when he started to cross the main track between the car attached to the engine which had passed and the cut of cars following; and that he did not see the cut of cars which struck his automobile until they were within 3 or 4 feet of his car. The foregoing facts, taken from the answers to interrogatories, are those most favorable to appellant's contention, and are the ones upon which he relies as showing contributory negligence.

[1][2] It is claimed that these answers show that appellee did some things which ordinary care required him not to do under the circumstances, and that he neglected to do some things which ordinary care required of him. The law imposes a duty on travelers on a highway approaching a railway crossing to use reasonable care. This duty arises out of the relation of parties, and is declared to exist as a matter of law; but, when the question arises as to what acts or conduct ordinary care requires under the circumstances of a particular case, this must generally be determined as a question of fact. The court cannot say as a matter of law that ordinary care requires a designated act to be done, or that it required a specific act to be omitted, unless the act in question was of such a character as to be wholly incompatible with the exercise of reasonable care when considered in the light of attending circumstances. It must be so absolutely inconsistent with the exercise of ordinary care that there could be no room for reasonable minds to differ on the question. So long as there is room for an honest difference between reasonable minds as to whether or not the doing (or the omission to do, as the case might be) of the particular act was consistent with the care that a man of ordinary prudence would use under the circumtances, the question is one of fact for the jury. What has been said does not apply, of course, to acts that are specifically required or forbidden by a law or ordinance. As to those acts, the doing of those so forbidden, or the omission to do those so required, is negligence per se. With this latter question we are not now concerned, and it is mentioned only that the distinction may be preserved between negligence as a matter of law and negligence as a question of fact.

[3] The courts of this state have been very cautious in stating that any special acts or precautions were required in the exercise of ordinary care, generally leaving that question to the jury. This court has declared as a matter of law that ordinary care requires a person about to cross a railroad track to use his senses of sight and hearing, but it has never said that he must stop or that he must look or listen at any particular place, except that he should look or listen at some place where such precautions would enable him to see or hear the approach of a train. Pittsburgh, C., C. & St. L. Ry. Co. v. Dove (1916) 111 N. E. 609, and cases there cited.

Appellant asks us to go further in this case, and to declare as a matter of law that other specific precautions on the part of appellee were necessary in the exercise of ordinary care, as, for instance, to stop his motor, or to stand up and look, or to get out and go forward and look, up and down the track. It is possible that the judge who presided at the trial may have thought that ordinary care, under the circumstances shown, required the use of some or all of such precautions, or that some of the members of this court may think so; but these are not questions of law for the decision of courts. It has been thought wise to submit such question to the 12 laymen composing the jury, to be decided as questions of fact under proper instructions from the court, in order that they may bring to bear their varied experiences and knowledge of men, in determining what a reasonably prudent man would ordinarily do under the circumstances disclosed by the evidence. This court cannot say that there is no room for reasonable minds to differ on any of these questions, and therefore cannot hold as a matter of law that any precaution under consideration should or should not have been observed in the exercise of due care.

[4] Appellant asserts that a distinction should be drawn between automobiles and vehicles drawn by horses in respect to the conduct of the driver in approaching a railway crossing. It is suggested that the speed of an automobile is under the complete control of a driver, and that, when moving at slow speed, it can be brought to a quick stop within a few feet of the tracks, if necessary to avoid danger, without exposing the occupant to the danger incident to the fright of horses, which would be likely if the vehicle were drawn by horses. There can be no doubt that it is possible for the driver of an automobile to take some precautions which are not available to the driver of horses, and the facts suggested, if they appear from the evidence, are all proper for the consideration of the jury in determining what precautions ordinary care required the driver of a motor car to use under the circumstances of the particular case. After all is said, however, the driver of a motor car is required to use only ordinary care; but what he should do in the exercise of due care must depend on the conditions surrounding him, as shown by the evidence, and the means available for controlling the speed and managing the...

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