Chicago & E.I.R. Co. v. Hedges

• Court: Indiana Supreme Court
• Writing for the Court: Per Curiam.
• Citation: Chicago & E.I.R. Co. v. Hedges, 105 Ind. 398, 7 N.E. 801 (Ind. 1885)
• Decision Date: 10 April 1885
• Parties: Chicago & E. I. R. Co. v. Hedges, Adm'x.

105 Ind. 398

7 N.E. 801

Chicago & E. I. R. Co.

v.Hedges, Adm'x.¹

Supreme Court of Indiana.

April 10, 1885.

Appeal from Fountain circuit court.

Black, C. The appellee, administratrix of the estate of Daniel T. Hedges, deceased, brought her action against the appellant to recover damages for the killing of said Daniel by his being run against and over by a train of cars owned and operated by the appellant upon the track of the Indiana, Bloomington & Western Railway Company, in the town of Covington, on the twenty-eighth of March, 1883. The complaint was in three paragraphs; all charging that the death was caused by the defendant's negligence, without negligence on the part of the intestate.

There has been some discussion as to whether the third paragraph charged a willful killing, concerning which we will speak presently.

The answer was a general denial. A jury returned a verdict for the plaintiff for $1,200, and answered interrogatories. The defendant objected to the receiving of the verdict and the discharge of the jury, and moved to require the jury to fully answer certain of the interrogatories, and to make their answers thereto definite and responsive. The court received the verdict and discharged the jury. The defendant moved unsuccessfully for a venire de novo, for judgment on the answers to interrogatories notwithstanding the general verdict, and for a new trial, and judgment was rendered on the verdict.

It will aid in the decision of the case to state the following facts: The defendant owned and operated a railroad which connected with the track of the Indiana, Bloomington & Western Railway Company, a short distance east of the depot of the latter company at Covington, and, by an arrangement between said companies, used the track of said latter company between said place of intersection and Danville, Illinois. Main street, in Covington, crossed the tracks of said latter company; being one main track, lying east and west, and, parallel therewith, two side tracks or switches. The defendant was moving a train of cars towards the west on said main track. At some distance east of said crossing, the engine was detached from the moving train, and was run with quickened speed across said street to a water-tank 240 feet west of said crossing; the train being left to follow, on a down grade, in charge of a brakeman. The plaintiff's intestate, a man 73 years old, having approached on said street, was struck, run over, and killed by the train.

The jury found, in answer to interrogatories, that the deceased was approaching the railroad crossing from the north; that he was walking; that he was familiar with the locality of the crossing; that he had known of the existence of the railroad at that place for 10 or more years; that he had been in the habit of going to the depot, and crossing the railroad tracks frequently; that his business had taken him to the depot, at or about the same hour as that at which he was killed, on each week-day for two or three months before he was killed; that he was on his way to the depot at the time he was killed; that the street on which he was walking ran nearly north and south, and crossed the railroad nearly at right angles; that the train was approaching the crossing from the east; that there were two side tracks at the crossing, both lying north of the main track, one of them “near twenty feet” and the other “near eight feet” from the main track; that from a point 40 feet north of the main track the deceased could have seen “near one hundred and forty feet” up the main track in the direction of the approaching train; that, had he looked when he reached the north side track, he could have seen “near one hundred and sixty feet” east along the main track; that, when he reached the south side track he could have seen “near two hundred and sixty feet” east along the main track; that the accident happened in the day-time; that the depot was west of the crossing, and south of the main track; that the depot platform approached within five and one-half feet of the west side of the street and sidewalk crossing.

The twenty-third interrogatory was as follows: “Did the train conductor stand on the depot platform, and shout a warning to the deceased?” The jury answered, “He hollowed;” and they answered that this was not done before the deceased had crossed the south side track, and that it was done before he had stepped on the main track. To the question, “Was the conductor's warning in tone loud enough to be heard at the Craig House, one hundred yards away?” they answered, “We do not know.” They answered, further, that there was a brakeman “at the brakes between the second and third cars, they being together;” that he did not shout a warning to the deceased while the latter was on the south side track. The thirtieth interrogatory was: “Did this brakeman shout a warning to the deceased before deceased reached the main track?” The jury answered, “He shouted.” They also found that the train was approaching the crossing at the rate of speed of about four miles per hour; that there were 11 cars in the train, all loaded; that for one-half a mile the main track approached the road crossing from the east, on a descending grade of 25 to 30 feet to the mile; that the deceased, if he had looked in the direction of the approaching train, could have seen it in time to stop before stepping on the track in front of it; and that the train could not have been stopped after the deceased stepped on the main track, and before it struck him. The eighteenth, nineteenth, and twenty-second questions, and the answers thereto, were as follows: “(18) Was the deceased struck within the limits of the street and sidewalk?”“We, the jury, are not agreed.”“(19) Was the deceased struck west of the crossing, and outside of the limits of the street and sidewalk?”“The jury are unable to agree.”“(22) How far west of the east end of the platform was deceased when the train struck him?” “Jury are disagreed.”

The allegations of the third paragraph, to which we need to direct attention, were as follows: “Said defendant, by her said servants, did then and there carelessly, negligently, purposely, willfully, and recklessly detach said locomotive engine from said train of cars, they being then in motion, and run and drive said engine, detached as aforesaid, with quickened speed to the water-tank, located about fifty yards west of said depot, near said last-named road's track; negligently, purposely, willfully, and recklessly leaving said train to follow, there being a descending grade from thence to said depot, down which said engine and train of cars were then moving.”

After mentioning certain obstructions to the view of one approaching said crossing from the north, the pleading alleged “that on said twenty-eighth day of March, Daniel T. Hedges, in the pursuit of his lawful and then daily avocation, was walking in a southerly direction on said highway to said depot, located in the south-west angle of said crossing, and as he had reached said crossing, and was in the act of passing over said main track, as he then had a lawful right to do, the defendant, by her servants and agents, carelessly, negligently, purposely, willfully, and recklessly caused said train of cars to approach said crossing, and negligently, carelessly, purposely, willfully, and recklessly omitted, by reason of their having detached and driven away the said locomotive engine as aforesaid, while so approaching said crossing, to give any signal by ringing the bell or sounding the steam whistle, or otherwise, by reason whereof the said Daniel T. Hedges was unaware of their approach; that by reason of said careless, negligent, willful, and reckless management of said train of cars, they were thereby driven and run against and upon said Daniel T. Hedges, and thereby caused his instant death, without any negligence or want of ordinary care on his part.”

Notwithstanding the frequent use of the words “purposely” and “willfully,” the pleading does not charge that the defendant purposely or willfully killed the intestate, or purposely or willfully ran the train upon him, or purposely or willfully caused it to be run upon him. The allegations amount to no more than a charge of killing through negligence. Ohio, etc., Ry. Co. v. Selby, 47 Ind. 471; S. C. 17 Amer. Rep. 719; Cincinnati, etc., R. Co. v. Eaton, 53 Ind. 307;Pennsylvania Co. v. Sinclair, 62 Ind. 301;Indianapolis, etc., R. Co. v. McClaren, 62 Ind. 566.

The record shows that the court refused to give to the jury a number of instructions asked by the appellant. It does not appear that these instructions, or any of them, were signed as required by the Code, (Rev. St. 1881, § 533;) therefore the appellant cannot be heard to complain of the refusal, (Stott v. Smith, 70 Ind. 298, 303.)

At the request of the appellee, the court instructed the jury as follows: “You are also instructed that, although a person may be improperly or unlawfully upon a railroad track, that fact alone will not discharge the company or its employes from the observance of reasonable care; and if such a person is run over by the train, and killed or injured, the company will be responsible if its employes were guilty of gross or reckless negligence, and could have avoided the accident by the exercise of reasonable and ordinary care and watchfulness.” This instruction was clearly erroneous. If a person be unlawfully upon a railroad track, the railroad company, in moving its trains upon the track, does not owe him any duty except to not purposely or willfully injure him. If he be willfully injured, his contributory negligence will not prevent his recovery; but if he, by his own fault, contribute proximately to his own injury, he cannot recover for the negligence of the company. Properly speaking, there are no degrees of negligence. The degree of care devolving on one as a duty depends upon a variety of circumstances, and negligence...