Cheek v. Hamlin

• Citation: 150 Ind.App. 681,29 Ind.Dec. 16,277 N.E.2d 620
• Decision Date: 20 January 1972
• Docket Number: No. 671A105,671A105
• Parties: Norma J. CHEEK, Administratrix of the Estate of Robert Eugene Cheek, Deceased, Plaintiff-Appellant, v. Homer HAMLIN, Administrator of the Estate of Jerry D. Hancock, Deceased, Defendant-Appellee.
• Court: Court of Appeals of Indiana

Page 620

277 N.E.2d 620

150 Ind.App. 681

Norma J. CHEEK, Administratrix of the Estate of Robert

Eugene Cheek, Deceased, Plaintiff-Appellant, v. Homer HAMLIN, Administrator of the Estate of Jerry D.

Hancock, Deceased, Defendant-Appellee.

No. 671A105.

Court of Appeals of Indiana, First District.

Jan. 20, 1972.

Alan E. Morrill, Chicago, Ill., Roland Obenchain, South Bend, for plaintiff-appellant.

Erle A. Kightlinger, Indianapolis, George Beamer, Jr., South Bend, for defendant-appellee.

LOWDERMILK, Judge.

On December 16, 1967, defendant-appellee's decedent, Jerry Hancock together with his family, called at the home of Robert Eugene Cheek, now deceased, in the town of Osceola for the purpose of visiting with them. Later the two families went out together in two vehicles, stopped at a restaurant and had dinner and went to a bowling alley where some of the parties bowled and enjoyed the evening and then returned to Osceola to the Cheek residence.

There had been no drinking at any time during the course of the evening, at the bowling alley nor after the parties returned home, and neither had there been any evidence of any ill will or bad feeling between any of the parties and, in fact, they were very close friends and visited together often.

After returning to the Cheek residence it was determined that Cheek needed fuel oil and that from between the hours of 12:30 and 12:50 A.M. the parties left the Cheek residence in a Ford Ranchero operated by Jerry D. Hancock with an oil tank to purchase fuel oil with which to heat the Cheek home. They drove north along Long Avenue approaching the grade of the railroad tracks of the Penn Central Railroad which runs in an easterly and westerly direction through the town of Osceola. The terrain through this town is generally level.

There are three sets of tracks, an industry track, an eastbound main line and a westbound main line track, with the westbound track being the northernmost of the three sets.

At the time Jerry D. Hancock approached the railroad tracks there was a westbound freight train approaching the crossing at a speed of 70 miles per hour en route from Logansport to the yards in Chicago. It struck the Ford Ranchero on the right side as it was on the northernmost, or westbound, track, having crossed two other sets of tracks, carrying it down the track several hundred feet, killing both of its occupants and throwing the body of Hancock out at the side of the tracks several hundred feet from the point of impact and carrying Cheek's body, pinned in the wreckage, to the point where the Ranchero fell or was thrown off of the front Diesel engine.

An estate was opened for each of the decedents and the first complaint charged Hancock with wanton or willful misconduct and charged the railroad company and its engineer with negligence in the operation of the train. Later the plaintiff-appellant dismissed as to the railroad company and the engineer and proceeded on an amended complaint for wrongful death under I.C. 9--3--3--1, Ind.Ann.Stat. § 47--1021 (Burns 1965) (the Guest Statute).

The amended complaint alleges facts similar to those related in this opinion and which amended complaint and answer were filed under the old Supreme Court Rule of admission and denial.

The evidence considered to determine if Jerry D. Hancock was guilty of wanton or willful misconduct was introduced, with the engineer and the fireman of the train testifying as the only known eyewitnesses, together with certain peace officers who investigated.

The train crew of Leo Grose, engineer, and Elmer A. Tutt, fireman, boarded the train at Elkhart about ten minutes before the accident, which boarding was about 12:30 A.M. on the morning of December 16th. The train had a double seal beam headlight, one below the other. At the time in question both of these headlights were operating. They would illuminate approximately 1,600 feet down the tracks, spreading out on either side thereof.

The engineer made the run between Elkhart and Chicago about 40 times per month, with general instructions to operate at 70 miles per hour, and he was following general instructions when he struck the plaintiff-appellant's decedent and Mr. Hancock in the Ranchero in the town of Osceola. The engineer, being on the right side of the locomotive, could only see to the left when he was not near a certain object or point and the fireman, riding on the other, or left, side of the cabin views the left side but has the same difficulty with obstructions on the right side of the engine when to the obstruction and only the engineer can see that.

A whistle post for westbound trains was located approximately 1,000 feet east of the first crossing in Osceola, which was the county line and which is about 1,000 feet to the next crossing west from the county line, with the whistle stop for Osceola being 800 to 1,000 feet from the first crossing in Osceola as you travel west. The requirements are that the whistle be blown continuously through Osceola proper.

The westbound train would first cross Long Avenue, then Apple Road, and then Chestnut Street, with Chestnut Street being the one on the west edge of town. It is there that the continuous whistle is discontinued.

The engineer testified that he could see 125 to 150 feet possibly to the south but his view to the left, or south, would be obstructed if an automobile would be within 30 feet from the track the train was traveling on.

The engineer did see the Ranchero before it was struck and saw it coming from the south when it was 125 to 130 feet from the track. It was light enough that he could see the lights on the vehicle and the vehicle itself by the lighted area in the town. The Ranchero was on Long Avenue. However, both the engineer and fireman were of the opinion that they struck this vehicle at Apple Road, but later investigation proved this to be error.

Both the engineer and fireman, Elmer A. Tutt, testified that the Ranchero never increased or decreased its speed. The engineer could see it over 100 feet before it became obliterated from his view and he struck the same. He estimated the speed to be in the neighborhood of 25 to 30 miles per hour.

The engineer testified his headlights were on; he applied the brakes at approximately the point of impact; however, when traveling at 68 miles per hour and you apply the brakes you begin to slow down after you have traveled approximately 100 to 200 feet.

The fireman indicated to the engineer that it looked as if the Ranchero was not going to stop and the emergency air brakes were set at that time.

There had been a continuous blast of the air horn from the time the train entered Osceola until it stopped. The horn was blown as loud as it would blow and intermittently changed from a long to a short blast, or anything to attract attention.

The evidence of Elmer A. Tutt, fireman, was practically the same as that of the engineer.

Donald Singleton, a county policeman, was on road patrol in December of 1967 when the fatal accident occurred at Osceola at Long Avenue. He worked this wreck, along with a Sgt. Russell. After receiving notice of the collision he had to drive a mile or a mile and a half to the point of impact and arrived there at 12:55. A.M., having been notified at 12:52 A.M. This police officer walked approximately 3,160 feet to the body of Jerry D. Hancock which had been thrown out of the motor vehicle. The Ranchero was approximately 3,745 feet from the point of impact and approximately 500 feet west of the body which had been thrown from the car.

The investigation included the taking of pictures, a part of which were introduced into evidence.

Identification on the bodies of the victims showed Mr. Cheek's body remained in the car pinned under the dashboard and Mr. Hancock's body had been thrown free of the wreckage.

The only discrepancy in the evidence is as to the crossing were the collision occurred and all witnesses, after having discussed the physical evidence and the facts with one another, determined that the accident happened at the north, or westbound, set of tracks on Long Avenue.

The evidence is practically conclusive on this as the gas tank from the Ranchero was found west on Apple and there were fresh grooves in the blacktop where the impact happened at Long Avenue.

The protective devices for the users of the public highway and streets at the Long Avenue crossing on the night in question consisted of a pole and cross arm. There also was an octagonal stop sign, as used by the State Highway Department, and also a bell.

The Goshen Road runs parallel to the tracks and is on the south side thereof and has an octagonal stop sign before one enters Long Avenue and then there is a pole with a cross arm on it and a telephone pole with a street light above it.

The stop sign on Long Avenue was south of the crossing and was north of Goshen Road. East of the Long Avenue crossing was some short brush, either on the railroad right-of-way or adjacent thereto, as evidenced by photographs. There was no foliage on the brush at that time of year and the brush appeared to be thin enough that light could shine through the same.

There was further evidence that the bell at the crossbuck warning rang as the train approached, but it was described as a 'tinkle' and may or may not have been audible to an approaching vehicle with windows closed.

The Penn Central tracks are constructed on a slight grade or elevation above street level at Long Avenue and generally through the town of Osceola.

Norma Cheek, widow of the decedent, plaintiff-appellant herein, testified that they had lived in Osceola nine years and had two children.

She and her husband, the decedent, were married in Georgia, where he was a sawmiller; they came to Chicago in 1954 where they resided eight years. The husband was employed as hydraulic mechanic. He quit that work and worked for himself, and then went back into the same kind of work. His income was...