Chicago And Eastern Illinois Railroad Company v. Vester

• Decision Date: 15 February 1911
• Docket Number: 6,875
• Citation: 93 N.E. 1039,47 Ind.App. 141
• Parties: CHICAGO AND EASTERN ILLINOIS RAILROAD COMPANY v. VESTER, ADMINISTRATOR
• Court: Indiana Appellate Court

93 N.E. 1039

47 Ind.App. 141

CHICAGO AND EASTERN ILLINOIS RAILROAD COMPANY v. VESTER, ADMINISTRATOR

No. 6,875

Court of Appeals of Indiana

February 15, 1911

From Mountain Circuit Court; Jere West, Special Judge.

Action by John C. Vester, as administrator of the estate of Bernard Polk, deceased, against the Chicago and Eastern Illinois Railroad Company. From a judgment on a verdict for $ 4,000 for plaintiff, defendant appeals.

Reversed.

Homer T. Dick, Lucas Nebeker and E. H. Seneff, for appellant.

Livengood & Bryant and Charles R. Milford, for appellee.

OPINION

HOTTEL, J.

This is an action brought by John G. Vester, as administrator of the estate of Bernard Polk, deceased, against appellant to recover damages on account of the death of said Polk, caused by being struck by one of appellant's trains, at a point in the city of Attica, Indiana, where a street of said city crosses appellant's tracks.

This action was brought by said administrator for the benefit of and to recover for Rosa A. Polk, the mother of said decedent damages accruing to her by way of loss of support resulting from the death of her said son.

The complaint was in five paragraphs. A demurrer was filed to each of the paragraphs, and was sustained as to the first and third paragraphs and overruled as to the second, fourth and fifth, and exceptions given to the ruling on each paragraph. The case was then put at issue by a general denial. There was a trial by jury, answers to interrogatories, general verdict for appellee in the sum of $ 4,000, motion for new trial overruled, and exceptions and judgment on the verdict, from which this appeal is taken.

The substance of the facts as to the time, place and circumstances of the injury, as set out in the complaint, and each of the paragraphs thereof, may be summarized as follows: Decedent was injured at a crossing on appellant's railroad on Washington street in said city, which street runs east and west, and is about eighty-two and one-half feet wide. Union street, in said city, runs north and south. Appellant's road runs on Union street in said city, from where it enters the city at the south, to and beyond Washington street on a down grade toward the north. Three of appellant's tracks cross said Washington street. The center track is the main line, and there is a side-track on the east, thirteen and one-half feet from the center track, and another side-track on the west, about thirty feet from the center track. The freight-house is eighty-seven feet south of Washington street, and on the east side of all of said tracks.

We quote from appellant's brief as follows: "On the afternoon of October 19, 1906, decedent had occasion to pass over said Washington street, crossing from the east side of said Union street, with a wagon loaded with corn, drawn by a team of mules, to the grain elevator on said Washington street, west of said crossing. When he arrived at about the north line of Washington street a train of freight-cars was approaching the crossing from the south on said main track, and he stopped about sixteen feet north of the center of Washington street, with his team facing south, and waited there for said train to pass. A train of freight-cars was standing on said east track, cut so as to leave a space of about twenty-five feet about the center of said street, the locomotive and one car being north of said space, and the remainder of such train--twenty cars or more--south of said opening, which train obscured his view of the main track, except as he could see through said opening at an angle of about forty-five degrees. Said approaching train gave the proper signals, and passed over said crossing at a rate of speed of more than ten miles an hour, and about twenty miles an hour. Some time prior thereto said train had broken in two parts, the exact time and place of such parting being unknown, and when the first portion of the train had passed about three hundred feet, decedent started his team across the tracks, being unable to look south for a greater distance than twenty or thirty feet until his team was on the main track, on account of the obstruction by said freight-train on said east track, some cars on said spur track, and said station. He drove through said gap with due care, and saw and heard nothing indicating the approach of any other train, or any part of a train, and was struck and killed by said detached portion of said train. No warning was given him by any one of the approach of said detached portion of said train, and he had no knowledge that it was approaching, and supposed that the entire train had passed."

While the allegations of negligence and its causative connection with the injury are not identical in the three paragraphs of complaint, yet we think, for the purposes of this opinion, that it is necessary to set out those contained in the fifth paragraph only.

The allegations of the fifth paragraph, as to negligence and proximate cause, are as follows: "That said train was broken in two wholly on account of negligence of defendant as follows: (1) The careless and negligent construction and equipment of said train, and in and by the fact that defendant negligently and carelessly used defective brakes, brake-shoes, rods, beams, and connecting appliances, which, on account of their defective condition, did not hold the two parts of the train together, of which defective condition defendant had knowledge at the time. (2) By and on account of the negligence of defendant in and by the careless and negligent handling, operation, management and control of said train and each part thereof. (3) By reason of the negligence and carelessness of defendant in allowing and permitting said train and each part thereof to run past said crossing at said high rate of speed, namely more than ten miles an hour, and about twenty miles an hour, in violation of an ordinance of said city of Attica, hereinafter set out." Also, the following: "That decedent was struck by said detached part of said train, and injured thereby as before described, wholly on account of the negligence of defendant in this, to wit: (1) By carelessly and negligently permitting said train to break in two and run wild, because of the defective and negligent equipment of said train, because of the negligent and careless handling of said train, and because of the unlawful and high rate of speed of the train and both parts thereof. (2) By carelessly and negligently managing and running said train and each part thereof, in that neither part was under the control of defendant, so that it could be stopped and controlled when necessary and proper. (3) By carelessly, negligently and unlawfully allowing and permitting said train, and each part thereof, to be run and to go within said city limits and past said Washington street as aforesaid, at said high and unlawful rate of speed, namely more than ten miles an hour, and about twenty miles an hour, and thus negligently allowing said detached part to strike and kill said Polk, as aforesaid."

The first and only error argued is that "the court erred in overruling appellant's motion for a new trial." The grounds for new trial are as follows: "(1) The damages assessed by the jury are excessive; (2) the verdict of the jury is not sustained by sufficient evidence; (3) the verdict of the jury is contrary to the evidence; (4) the verdict of the jury is contrary to law; (5) the assessment of the amount of recovery is erroneous, being too large."

Counsel first discuss the sufficiency of the evidence, and say that the evidence affirmatively shows contributory negligence on the part of decedent. It seems to us that the statement of facts, which is admitted to be correct, is all that is necessary to show that decedent acted as any prudent man, similarly situated, might act. In fact appellant's counsel concede that the conditions were such that decedent probably could not have seen in time to save his team; but that if he had been looking and had exercised proper care he could have escaped in time to prevent injury to himself. It is much easier, from a position of safety, to speculate upon what would have been prudent and considerate action, than to form the opinion and promptly act upon it when the danger is present and the peril imminent. Under such circumstances, eminently prudent men might act differently. There is no better tribunal to judge of the prudence of the acts and conduct of a man so situated than a jury of twelve men. Their judgment and conclusion should be final, unless the facts and circumstances are such as to compel a different opinion by the appellate tribunal. The facts in this case do not justify such a conclusion.

Counsel next discuss "Defendant's Negligence." Under this head, counsel concede that the complaint sufficiently charges negligence in the breaking of the train, in that it charges "(1) the use of defective appliances, with knowledge of such defects; (2) careless and negligent management of the train, and each part thereof; (3) that the train, and each part thereof, were negligently allowed to run past said crossing at a rate exceeding ten miles an hour, thereby violating the speed ordinance of the city."

But counsel insist that all these allegations have reference directly and exclusively to the cause of the break of the train, and must therefore be limited to conditions or acts at or before the time of such break. They insist, therefore, that it is not the theory of either paragraph of the complaint that there was careless and negligent management of the separated or lost division of the train after the break, but that the theory of each paragraph upon this subject of negligent management of each part of the train relates to the management prior to, and...