Chicago & Eastern Illinois Railway Company v. Hix

• Court: Indiana Appellate Court
• Writing for the Court: NEAL, J.
• Citation: Chicago & Eastern Illinois Railway Company v. Hix, 173 N.E. 602, 91 Ind.App. 698 (Ind. App. 1930)
• Decision Date: 09 December 1930
• Docket Number: 13,924
• Parties: CHICAGO AND EASTERN ILLINOIS RAILWAY COMPANY v. HIX

173 N.E. 602

91 Ind.App. 698

CHICAGO AND EASTERN ILLINOIS RAILWAY COMPANY v. HIX

No. 13,924

Court of Appeals of Indiana

December 9, 1930

From Knox Superior Court; William F. Calverley, Judge.

Action by Otto Hix against the Chicago and Eastern Illinois Railway Company. From a judgment for plaintiff, the defendant appealed.

Affirmed.

Kessinger & Hill, for appellant.

Lee F Bays, John C. Chaney and Horace Foncannon, for appellee.

OPINION

NEAL, J.

Appellee instituted this action to recover damages of appellant by reason of its alleged negligence. This appeal is only concerned with one of the assigned errors: the overruling of appellant's motion for a new trial, and the two causes named therein, viz., the verdict of the jury is not sustained by sufficient evidence, and the verdict is contrary to law.

The complaint alleged that appellant in the operation of its train violated the provisions of Acts 1881 (Spec. Sess.) p 590, § 13038 Burns 1926, in that the servants of appellant did not, when the engine was not less than 80 nor more than 100 yards from the crossing where the accident took place as hereinafter described, sound the whistle distinctly three times and ring the bell continuously from the sounding of such whistle until the engine fully passed over the crossing.

A review of the evidence discloses that the allegations of negligence were proved by competent evidence. The violation of the provisions of the above section of the statute by appellant was negligence per se, and if such negligence was the proximate cause of appellee's injuries, appellee was entitled to recover. Pittsburgh, etc., R. Co. v. Terrell (1911), 177 Ind. 447, 95 N.E. 1109, 42 L. R. A. (N. S.) 367.

Appellant admits the above rule of law is applicable to the evidence favorable to appellee, although there was sharp conflict in the testimony of the several witnesses on the alleged negligence.

Appellant, however, most earnestly insists that this court say, as a matter of law, under the facts of this case, that the appellee was guilty of contributory negligence and that such negligence proximately contributed to his injuries.

We give a resume of the evidence favorable to appellee upon the question of his contributory negligence: Chaney Street in the city of Sullivan runs east and west; appellant's railroad for some distance at the point of its intersection with Chaney Street runs north and south; the first house east of the intersection and on the north side of the street is approximately 100 feet from the crossing, the second house 172 feet distant; a large maple tree is located six to eight feet west of the first house and near the north line of the street; six poplar trees are in a row about 50 feet from the crossing almost in line with the maple trees, and there is a large sycamore tree near appellant's right of way at the intersection with Chaney Street on the north side thereof; several other trees are located between the first house and the intersection, but farther from the north line of the street than these first mentioned; the branches of most of the trees were 10 feet from the ground, and not all of the leaves were off the trees at the time of the accident, to wit: November 21, 1927; farther north and behind the trees was a three-year-old peach orchard, and, on and near the east side of appellant's right of way, immediately north of its intersection with Chaney Street, there was vegetation consisting of sweet clover and horse weeks; the surface water flowing west on the north side of Chaney Street had caused large crevices in the ground near the intersection; the approach to the intersection from the east was on an incline which started about 70 feet east of the railroad tracks; the railroad tracks were on a grade approximately eight feet higher than the street level at several places within the 70 feet; the height of the railroad grade prevented one traveling in an automobile going west on Chaney Street east of the intersection from observing an automobile traveling east on the west side of the intersection.

Appellee,...