Central Indiana Railway Company v. Wishard

• Decision Date: 30 January 1917
• Docket Number: 22,762
• Citation: 114 N.E. 970,186 Ind. 262
• Parties: Central Indiana Railway Company v. Wishard
• Court: Indiana Supreme Court

114 N.E. 970

186 Ind. 262

Central Indiana Railway Company v. Wishard

No. 22,762

Supreme Court of Indiana

January 30, 1917

Rehearing Denied April 27, 1917.

From Tipton Circuit Court; Leroy B. Nash, Judge.

Action by Ernest E. Wishard against the Central Indiana Railway Company. From a judgment for plaintiff, the defendant appeals.

Affirmed.

U. C Stover and Dan Waugh, for appellant.

William F. Elliot and Wymond J. Beckett, for appellee.

OPINION

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. A coal shed and other obstructions were near the crossing, and, at the time of the injury to appellant, a freight car eight and one-half feet in height was standing on the north sidetrack, the west end of which extended into Sixth street a distance of eight and one-half 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 was approaching from the east. The negligence charged against appellant by the complaint is that it negligently left said freight car standing on its sidetrack 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 the answers show that appellant was acquainted with the 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 slow speed, and stopped it on the east side of Sixth street at a point thirty feet north of the main track; that Sixth street is fifty 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 ten feet high along the east side of Sixth street extended to a point within seven feet of the sidetrack and that appellant knew of said fence and shed; that there was a coal car eight or nine feet high standing on the sidetrack at the east side of Sixth street with its west end extending eight or nine feet into Sixth street, and that the center of the sidetrack was thirteen 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 four or five feet back of the front end of the car and when seated therein his eyes were about five and one-half 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 four 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 three or four 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.

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 required 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 circumstances, 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.

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 exercise reasonable care to look or listen at some place where such precautions would enable him by the exercise of such care to see or hear the approach of a train. Pittsburgh, etc., R. Co. v. Dove (1915), 184 Ind. 447, 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 twelve 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.

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 motorcar to use under the circumstances of the particular case. After all is said, however, the driver of a motorcar is required to use only ordinary care; but what he should do...