Chicago, Indianapolis & Louisville Railway v. Ellis

• Decision Date: 10 December 1925
• Docket Number: 12,117
• Parties: CHICAGO, INDIANAPOLIS & LOUISVILLE RAILWAY COMPANY v. ELLIS, ADMINISTRATRIX
• Court: Indiana Appellate Court

149 N.E. 909

83 Ind.App. 701

CHICAGO, INDIANAPOLIS & LOUISVILLE RAILWAY COMPANY v. ELLIS, ADMINISTRATRIX

No. 12,117

Court of Appeals of Indiana

December 10, 1925

From Washington Circuit Court; James L. Tucker, Judge.

Action by Maude E. Ellis, as administratrix, against the Chicago Indianapolis and Louisville Railway Company. From a judgment for plaintiff, the defendant appeals.

Reversed.

C. C Hine and Alfred Evens, for appellant.

Bayless Harvey, W. H. Hottell and W. E. Cox, for appellee.

OPINION

NICHOLS, C. J.

Action for damages brought by appellee as administratrix of the estate of Lawrence D. Ellis, deceased, on account of alleged injuries received by him in a railroad grade crossing accident at the intersection of appellant's railroad tracks and a public highway in the town of Paoli, Indiana, on March 12, 1923. There was a collision at said crossing between one of appellant's passenger trains and an automobile truck being driven by him, as a result of which it is alleged that he received injuries that resulted in his death.

There was a trial by jury which resulted in a verdict against appellant for $ 4,500, on which judgment was rendered, from which, after appellant's motion for a new trial was overruled, this appeal, appellant presenting as errors the questions hereinafter discussed. The complaint is very long covering eleven pages of the record. Briefly stated, it charges that appellant negligently left cars standing on its side track, on either side of the highway, the distance between the ends of which cars did not exceed thirty feet; that appellant operated its train over and upon said crossing at a negligent and reckless speed, to wit, forty miles per hour; that the employees of appellant in charge of said train, saw appellee's decedent in a place of danger, in time, in the exercise of ordinary care, to have stopped the train and prevented the injury, upon the theory of the "last clear chance"; and, that appellant negligently failed to sound the whistle on the engine, not less than eighty nor more than 100 rods from the crossing and negligently failed to ring the engine bell continuously from said point until the crossing was reached, and negligently failed to give any notice or warning of the approach of its train. It averred therein, at great length, obstruction to view of one approaching the crossing on the highway from the north by trees, shrubs, buildings, embankments, a high hill and box cars left standing on the side track, and that, because of said obstructions to view, the crossing was a dangerous crossing, and that it was the duty of appellant to maintain a watchman or crossing gates or bars at the crossing, to warn travelers upon the highway of its approaching trains.

It was also averred that appellee's decedent was familiar with the train schedules of appellant, that the train involved in this accident was running late, that plaintiff's decedent did not know the train was running late and thought it had passed the crossing, and was "thereby deceived and misled."

There was no reversible error in overruling appellant's motion to separate the complaint into paragraphs. It is well established that different acts of negligence may be averred in a single paragraph of complaint where there is but a single cause of action. Pittsburgh, etc., R. Co. v. German Ins. Co. (1909), 44 Ind.App. 268, 87 N.E. 995; New York, etc., R. Co. v. Callahan (1907), 40 Ind.App. 223, 81 N.E. 670. It was appellee's privilege to include in her complaint as many acts of negligence as she thought in any was contributed toward producing the accident, without making such complaint amenable to a motion to separate into paragraphs. Knickerbocker Ice Co. v. Gray (1908), 171 Ind. 395, 84 N.E. 341; Pittsburgh, etc., R. Co. v. Lightheiser (1906), 168 Ind. 438, 78 N.E. 1033.

There is no positive duty imposed by law upon a railroad company to maintain a watchman or gates at a highway crossing, in the absence of an ordinance, or order of the Public Service Commission, or other proper authority. Terre Haute, etc Traction Co. v. Phillips (1921), 191 Ind. 374, 132 N.E. 740. While the absence of a watchman or of gates might be shown as a circumstance attending the operation of the train, from which to determine, in connection with the amount of travel habitually passing over the crossing and all other circumstances, whether the operation of the train in the manner and at the speed that it was operated was negligence (Terre Haute, etc., Traction Co. v. Phillips, supra), yet there was no positive duty resting on appellant to maintain a watchman or gates at the crossing, and the charge of such duty, and such it is, in effect, should have been stricken out of the complaint. Ohio Electric Co....