Chicago, I. & L. R. Co. v. Carter

• Decision Date: 03 November 1971
• Docket Number: No. 1170A187,No. 2,1170A187,2
• Parties: CHICAGO, INDIANAPOLIS AND LOUISVILLE RAILROAD CO., d/b/a Monon Railroad, Appellant, v. C. Kent CARTER, As Personal Representative of Edgar L Riddle, Deceased, Appellee. CHICAGO, INDIANAPOLIS AND LOUISVILLE RAILROAD CO., d/b/a Monon Railroad, Appellant, v. Fred HARP, Appellee
• Court: Indiana Appellate Court

Page 537

274 N.E.2d 537

149 Ind.App. 649

CHICAGO, INDIANAPOLIS AND LOUISVILLE RAILROAD CO., d/b/a

Monon Railroad, Appellant, v. C. Kent CARTER, As Personal Representative of Edgar L

Riddle, Deceased, Appellee.

CHICAGO, INDIANAPOLIS AND LOUISVILLE RAILROAD CO., d/b/a

Monon Railroad, Appellant, v. Fred HARP, Appellee.

No. 1170A187.

Appellate Court of Indiana, Division No. 2.

Nov. 3, 1971.

James R. Cotner, Snyder, Bunger, Cotner, Harrell & Robertson, Bloomington, for appellant.

C. Kent Carter, Bloomington, for appellee Fred Harp and for himself as personal representative of Edgar L. Riddle, Deceased.

HOFFMAN, Chief Justice.

In this appeal, appellant Chicago, Indianapolis and Louisville Railroad Company (Railroad) raises two issues for the court's consideration: 1) whether the verdict of the jury is sustained by sufficient evidence from which it could have concluded that defendant was negligent; and 2) whether the verdict of the jury was contrary to law in that the jury did not apply the doctrine of contributory negligence.

The facts of this case as shown by the record before us are as follows:

On the morning of October 22, 1965, employees of appellant-Railroad were backing a 16-car train along a spur track leading from the main track into the quarry area of the Independent Limestone Company. The purpose of this backing operation was to 'spot' cars for the loading of limestone.

A crew consisting of an engineer, a conductor, a fireman, a head brakeman and a flagman was assigned to the train. The conductor was stationed at the junction to the spur track and the main track some two or three miles away to watch for 'superior trains.' The other four employees were aboard the train.

At the head ¹ of the train were two flatcars, both piled five or six feet high with stone. Behind these was an empty flatcar upon which the flagman was standing. The flagman's duty was to watch the track ahead for anything that might be dangerous. Should he discover a dangerous situation, the flagman was to relay the appropriate signal to the head brakeman who was riding atop a loaded gondola car some three or four cars ahead of the engine. The head brakeman, in turn, was to relay the signed to the fireman riding in the cab of the engine who was to then communicate the signal to the engineer.

As the train moved along the spur into the quarry, it approached the point where an access road to one of the stone derricks crossed the tracks. Blocks of stone stacked forty to fifty feet high walled both sides of the track making the view of this road nearly impossible with the exception of the spot where the road crossed the tracks.

Suddenly, from his position behind the two loaded flatcars, the flagman saw the bed of a truck 'fly off.' He immediately relayed the 'washout' signal which, in railroad terms, indicates to the engineer to stop the train. From his position, the train having rolled some four car lengths farther after the brakes were applied, the flagman saw fragments of a truck strewn about the immediate vicinity.

Resulting from this collision were two causes of action. One was brought by appellee-C. Kent Carter, as personal representative of Edgar L. Riddle, driver of the truck, for wrongful death of said Edgar L. Riddle. The second action was brought by appellee-Fred Harp for damages to his truck growing out of the collision.

The amended complaints in the two causes of action alleged that the death of Edgar Riddle and the damage to the truck were caused by defendant's negligence in:

(a) failing to give any signal, notice or warning of the approach of the train;

(b) failing to post a flagman or lookout on the lead car of the train;

(c) operating the train carelessly and negligently at a speed of 15 miles per hour; and

(d) failing to stop the train after discovering the peril to decedent.

The wrongful death action was tried to a jury which was dismissed on August 14, 1969, as being unable to agree. On October 16, 1969, plaintiff filed a motion to consolidate both causes of action. This motion was subsequently granted by the trial court, and both causes of action were tried to a jury on February 9, 1970. This trial resulted in a verdict and judgment thereon for plaintiff-C. Kent Carter, personal representative of Edgar L. Riddle, for damages for the wrongful death of said Riddle in the amount of $15,000, and a verdict and judgment thereon in favor of plaintiff-Fred Harp for damages to his truck in the amount of $2,160.

Defendant-Railroad next filed a motion for a new trial ² which, having been subsequently overruled by the trial court, gives rise to this appeal. In this motion the defendant alleged that the verdict of the jury was not sustained by sufficient evidence, that the verdict of the jury was contrary to law, and that the giving of certain instructions was an error of law. Defendant-appellant does not raise any contention concerning erroneous instructions on appeal, arguing only the first two contentions stated above.

The duty of this court in reviewing the record with regard to these contentions was stated in Palmer v. Decker (1970), Ind., 255 N.E.2d 797, at 798, 20 Ind.Dec. 439, at 440, as follows:

'In reviewing the evidence, on appeal, we look to the evidence most favorable to the appellee to determine if there is substantial evidence of probative value or reasonable inferences therefrom to sustain the decision of the trial court. We will reverse the decision only if the evidence and reasonable inferences are undisputed, and could only lead to a decision contrary to the one arrived at by the jury.' See also: Pokraka v. Lummus Co. (1952), 230 Ind. 523, 529, 104 N.E.2d 669; Echterling v. Jack Gray Transport, Inc. (1971), Ind.App., 267 N.E.2d 198, 24 Ind.Dec. 682; City of Whiting v. Grindle (1945), 115 Ind.App. 407, 59 N.E.2d 360.

In reference to the first issue, whether the verdict is sustained by sufficient evidence, appellant argues that there is no evidence to support plaintiffs' charge that the train was negligently operated at a speed of 15 miles per hour, or greater. While appellant correctly quotes uncontradicted testimony stating that the train was moving at '5 to 7 miles per hour' the verdict of the jury could well have been based on facts other than excessive speed.

Appellant next concedes that there is conflicting evidence in the record to justify a finding by the jury that defendant failed to give any signal, notice or warning of the train's approach and that the defendant failed to post a lookout on the lead car of the train. Appellant contends, however, that such 'failures' do not constitute actionable negligence without a finding of duty, an omission or negligent performance of that duty and the damages complained of proximately resulting therefrom.

This position is supported by many Indiana decisions including Taylor v. Indiana Bell Telephone Company (1970), Ind.App., 262 N.E.2d 399, at 401, 22 Ind.Dec. 681, at 684, wherein this court stated:

'The requisite elements for any action in negligence are a duty, breach of that duty and injury as a consequence of the breach.' (Citing authorities)

Appellant's assertion that it owed the decedent no duty to sound a warning relies heavily on the fact that the accident occurred at a private (as opposed to a public) crossing. The Supreme and Appellate Courts of Indiana have often held that railroads owe a duty of reasonable care to users of private farm crossings. Baltimore, etc. R. Co. v. Slaughter (1906), 167 Ind. 330, 79 N.E. 186; Terre Haute, etc. Traction Co. v. Ferrell (1928), 95 Ind.App. 456, 164 N.E. 307 (transfer denied 1933). Similarly, in New York Cent. R.R. Co. v. Wyatt, Admrx. (1962), 135 Ind.App. 205, 230, 184 N.E.2d 657 (transfer denied 1963), this court held that there is no statutory duty of a train to signal at private crossings, however, the train is required to give such timely and reasonable signals as required by due care under the circumstances.

In the instant case at least two of the crewmen testified that they were aware of the location of the crossing and were aware that in the past the crossing had been used to gain access of Derrick No. 2. In addition, the crewmen were aware that for years vision of, and...