Chicago & Eastern Illinois Railroad Co. v. Boggs

• Decision Date: 18 February 1885
• Docket Number: 11,826
• Citation: 101 Ind. 522
• Parties: The Chicago and Eastern Illinois Railroad Company v. Boggs
• Court: Indiana Supreme Court

101 Ind. 522

The Chicago and Eastern Illinois Railroad Company v. Boggs

No. 11,826

Supreme Court of Indiana

February 18, 1885

Reported at: 101 Ind. 522 at 531.

From the Vermillion Circuit Court.

Judgment affirmed.

J Henry, W. Armstrong, J. Jump and C. W. Ward, for appellant.

C. V McAdams, J. G. Pearson, J. C. Sawyers and O. B. Gibson, for appellee.

OPINION

Elliott, J.

On the morning of the 16th of July, 1883, the appellee and her husband were driving along a highway which the appellant's track crossed. As they neared the crossing, they heard a locomotive and train approaching, and they stopped until that train had passed. As soon as that train had cleared the highway, the appellee's husband started the horses into a brisk trot, and attempted to cross the track, but the wagon was struck by a train which was following the one that had gone over the crossing, and the appellee was thrown out and seriously injured. There is a sharp conflict in the evidence as to how closely the rear train was following the leading one, but there is evidence fully warranting the inference that there was only a very short distance between them, and that there was an interval of a very few seconds only between the time the one left the crossing and the time the other ran upon it. There was evidence tending very strongly to show that during the summer the growing grain, the rank weeds and luxuriant foliage of trees and bushes obstructed the view of the crossing from the highway. The track runs through a deep cut and makes a curve before reaching the crossing, and these, combined with other things, made it very difficult to see an approaching train. The appellee and her husband were old persons, the former sixty-five years of age and deaf in one ear. They were both well acquainted with the crossing, and had very frequently driven over it. The appellee testified that she and her husband did look and listen for approaching trains as soon as they reached a point where they could see, but that they neither saw nor heard the train which ran into the wagon until they had driven upon the track. The train which first passed the crossing was composed of seventy-three cars, and was about one-half mile in length. There was a direct conflict as to whether the whistle was blown or the bell sounded by the persons in charge of the engine which struck the appellee, and there was also much evidence tending to show that the clatter and noise of the first train was so great that it would have drowned the sound of the bell or whistle, even if the signals required by law had been given by the hindmost train.

The statute requiring signals to be given at a designated distance before reaching the highway crossing is intended to compel railroad companies to sound warnings of the approach of trains, and is not intended, as appellant assumes, merely to warn travellers that a railroad track crosses the highway. The duty is imposed by law, and its breach constitutes negligence. It is a familiar principle that a breach of duty constitutes actionable negligence, and it is upon this principle that the adjudged cases, without conflict, declare that the omission to give the signals required by statute constitutes such negligence as renders the company liable to one who, without fault on his part, has suffered injury as the result of that negligence. It is hardly necessary to quote from the authorities upon this subject, yet, for the purpose of setting the question in full view and throwing upon it a clear light, we do quote from some of the text-books. In a recent work it is said: "When by law bell ringing and sounding the whistle are required in approaching and passing over public road crossings, the omission thereof amounts to actual negligence on the part of the company." 2 Rorer R. R. 1006. Another author says: "The company is liable for injuries caused by its omission of these duties, when imposed by statute. The omission is calculated to mislead the traveller, and to assure him that the coming of the train is not imminent; and it is evidence of negligence." Pierce R. R. 350. In speaking of duties imposed by statutes upon railroad companies, it was said in another text-book, that "These regulations being clearly intended for the protection of travellers, it would seem natural to suppose that any violation of them should be deemed culpable negligence, in an action brought by a traveller." Shearman & Redfield Neg., section 484. Wharton says: "Even where a statute is in force requiring the use of a bell or steam-whistle or other signal at a crossing, while the omission to comply may, under the statute, create a prima facie case against the company, it is a good defence that the plaintiff saw the train, and recklessly exposed himself to the collision. When, however, the injury results from the omission of the signal, then the railroad is liable." Wharton Neg., section 804. In the case of Pittsburgh, etc., R. W. Co. v. Martin, 82 Ind. 476, it was said, in speaking of our statute: "While such a law existed, a violation of it was undoubtedly a failure to give reasonable, proper and timely notice. The signal required by the law not being given, the view being obstructed, and the plaintiff not being hard of hearing, he had no reason to suppose that the train was within eighty rods of the crossing; he was misled by the defendant's negligence in omitting the proper signal; he was not guilty of negligence in assuming, in the absence of any indication to the contrary, that the company was obeying the law, and that no engine was advancing toward the crossing within a distance of eighty rods." In the recent case of Cincinnati, etc., R. W. Co. v. Hiltzhauer, 99 Ind. 486, the general subject was discussed, and it was held that the omission to give the signals required by statute constituted negligence, and that the statute gave a right of action to one injured in person or property by such negligence.

It may be laid down as settled law, that the omission to give the signals required by statute constitutes culpable negligence, and that such signals are intended to warn travellers, in lawful use of the highway, of approaching trains. As this is settled law, positively declared by statute, the railroad company can not disobey it without incurring liability to a traveller who is injured without fault on his part contributing to the injury. Nor can the company by its own wrong render unavailing the signals required by law. If it runs one train so close upon another that there is no time to give the warning in the manner prescribed by law, it is guilty of negligence. It is obvious that the object of the statute would be defeated if one train could be run so close to another as that the noise and rumble of the leading train would drown the signals given by the train following it. Railroad companies have no greater rights to the crossing than the traveller, except the right to priority in passing, and they have no right to do any act that will mislead a traveller and expose him to needless danger.

In Beisiegel v. New York Central R. R. Co., 34 N.Y. 622, 633, it was said: "The omission of the customary signals was an assurance by the company to the plaintiff that no engine was approaching within a quarter of a mile on either side of the crossing. On this he was entitled to rely, and to the defendant he owed no duty of further inquiry." In the course of the opinion in Owen v. Hudson River R. R. Co., 35 N.Y 516, it was said: "As a general proposition, the public has a right to rely upon the performance of its duty by a railroad company, and no one can be justly charged with negligence as against a wrongdoer, either violating or omitting its duty for such reliance." Another court says: "The citizen who, on a public highway, approaches a railway track, and can neither see nor hear any indication of a moving train, is not chargeable with negligence for assuming that there is no car sufficiently near to make the crossing dangerous." Kennayde v. Pacific R. R. Co., 45 Mo. 255. It was said in Pennsylvania R. R. Co. v. Ogier, 35 Pa. 60, 72, in speaking of the omission to give the signals required by law: "For, if by negligence or omission of those in charge of the train his vigilance was allayed, they are not at liberty to impute the consequence of their acts to his want of vigilance, a quality of which they deprived him." Even where there is no statute requiring signals to be given, or flagmen stationed at crossings, yet, if it has been customary to give signals or provide flagmen, it may be negligence to discontinue them. Pittsburgh, etc., R. W. Co. v. Yundt, 78 Ind. 373 (41 Am. R. 580). It is, indeed, a general rule that citizens have a right, within reasonable limits, to act upon the presumption that a corporation charged with a duty will perform it. City...