Chicago & E.R. Co. v. Thomas

• Decision Date: 03 January 1900
• Citation: 55 N.E. 861
• Parties: CHICAGO & E. R. CO. v. THOMAS.
• Court: Indiana Supreme Court

55 N.E. 861

CHICAGO & E. R. CO.

v.THOMAS.

Supreme Court of Indiana.

Jan. 3, 1900.

Appeal from circuit court, Huntington county; Frank S. Roby, Special Judge.

Action by Sampson M. Thomas, as administrator of the estate of James H. Platt, deceased, against the Chicago & Erie Railroad Company, for the wrongful killing of plaintiff's intestate. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

W. O. Johnson and Kenner & Lesh, for appellant. Dailey, Simmons & Dailey and Branyan & Branyan, for appellee.

HADLEY, C. J.

The appellee brought this action to recover damages for the alleged wrongful killing of appellee's decedent, James L. Platt, at a street crossing on appellant railroad in the town of Markle. The complaint is in two paragraphs, to each of which a separate demurrer was overruled. Trial upon the general issue, general verdict for the plaintiff, and answers to 120 interrogatories. Appellant's motion for judgment upon the answers to interrogatories notwithstanding the general verdict was overruled, as was also its motion for a new trial, and the action of the court upon the demurrers to the complaint and upon the several motions is assigned for error.

The only objection to the complaint pointed out by appellant is the absence from each paragraph of an averment that actual damages were sustained in the death of Platt. Each paragraph of the complaint avers that the decedent left surviving him Alice Platt, his widow, and Fon Platt, a son aged 1 year, and that both are still living. The legal presumption is that the widow and infant child were both entitled to the services of the deceased, and that such services were valuable to both; and such presumptions are sufficient to sustain a complaint against a demurrer which confesses the truth of the averments. Korrady v. Railway Co., 131 Ind. 261, 29 N. E. 1069.

It is earnestly insisted that the court erred in overruling appellant's motion for judgment upon the answers to interrogatories for the reason that the facts disclosed by the answers are of a character to require the court to rule, as a matter of law, that the deceased was guilty of contributory negligence. In considering this question, we must indulge all reasonable presumptions against the answers and in support of the general verdict; and, if the general verdict thus aided is not in irreconcilable conflict with the answers, it must stand. In the general verdict the jury pronounced upon all the issuable facts in the case. By it they have said that under all the facts proven the deceased was free from contributory fault; and an isolated fact disclosed by an interrogatory will not be permitted to override the general verdict, if it can be reconciled therewith upon any conceivable facts that may be proven under the issues. Railway Co. v. Schmidt, 134 Ind. 16, 19, 33 N. E. 774;Stone Co. v. Summit, 152 Ind. 297, 301, 53 N. E. 235.

The following facts are disclosed by the answers to interrogatories: The decedent was about 25 years of age on the 14th day of January, 1892, the day he was killed. During his whole life he had lived 4 1/2 miles north of Markle, which lies on the south side of appellant's tracks, and he visited the town on the average once a week during the last 3 years of his life. On the day of the accident he was hauling logs from a point north of the tracks to a mill south of them. He hauled one load in the forenoon of that day, crossing the tracks on Lee street, and after unloading returned by the same route. In the afternoon he crossed at the same point with a second load, and was home bound by the same way when he was killed. He was using a team of horses hitched to a sled constructed of two planks for runners, curved in front, and held in place by benches connecting the runners, and acting as bolsters. It was 14 inches high from the bottom of the runners to the top of the benches, and he was seated on the forward bench, driving his team north on Lee street, at the time he was killed by a train west bound on the main track. At that time the appellant's tracks across Lee street were: First, a main track; second, north of and 14 feet from it, a side track; third, north of that, and 14 feet from it, a second side track; and, fourth, south of the main track, and 20 to 30 feet from it, a third side track. The space between the main track and the south siding was slightly wider east of the street than at its intersection, and this space was free from obstructions for the distance of 120 feet east of the street, at which point the space was 32 feet wide; and there was located a pile of lumber, the north end of which was 20 feet from the main track, composed of boards 12 to 14 feet in length,-ends to the track,-and from 10 to 14 feet high. To the east of this, and between said tracks, there were other lumber piles, all nearer the side than the main track, and so placed for convenient loading on the cars. Immediately east of the east line of the street, south of the side track, with its north edge as near as it could be placed so as to admit the passage of cars, was a lumber dock, extending eastward along the track 120 feet, 40 feet wide from north to south, and about as high as the floor of an ordinary freight car, upon which at various points were piled two or three cars of lumber. Standing on the side track, just north of the lumber dock, was a freight car, the west end of which was from 8 to 10 feet of Lee street. Immediately south of lumber dock, connected by a runway, and on the east line of Lee street, was Fee's sawmill, two stories high, and 100 feet long north and south, and which was running at the time of the accident. There was a mill on the south side of the tracks, known as Wilkinson's, the west line of which was about 230 feet east of Lee street. For some time before and at the time of the accident there was on the first siding north of the main track, and west of the street, an engine, headed west, with 12 or 14 freight cars attached, the easternmost of which was near the west line of the street, the train to which they belonged having been cut or divided at the crossing, leaving a part of its cars east thereof, and the rest, with the engine attached, west of the street; and that train was lying on the siding, awaiting the passage of No. 5, which last is the one causing the death. At the time of the accident the decedent'seyesight was good, and his organs of hearing were of ordinary acuteness. Having discharged his last load, Platt drove northward on Lee street to a point 20 or 30 feet south of the south siding, where he stopped and held a conversation with some one, he remaining seated on the front bench of his sled. From that point he could not have seen a train approaching from the east in time to have started thence and crossed the main track before such train, running at the usual speed, would have reached Lee street; nor could he, from that point, have seen such train at all until it reached the street. As soon as the conversation ended he started and drove directly north on the street until the collision occurred, which was about 5 o'clock in the evening. The weather was cold, some snow was falling, and the wind was blowing from the west. Those in charge of the locomotive drawing train No. 5 did not, when such locomotive was not less than 80 nor more than 100 rods from Lee street, distinctly sound the whistle three times, nor continuously ring the bell of the locomotive until said locomotive had passed the crossing of Lee street.

Some interrogatories and answers are as follows: “If said Platt, in passing over the tracks on the occasion of the accident, had looked eastward from a point in the center of the space between the main and south side track on Lee street, could he have seen a train approaching from the east far enough to have avoided the accident by remaining where he was until it had passed? Answer. No.” “Did Platt, while on his way across the tracks on the day of the accident, when in the space on Lee street between the main and south side track, look to the eastward to see whether or not a train was approaching from that direction? Answer. No.” “While attempting to pass over said tracks just before the accident, was the deceased continuously looking to the west or northwest, in the direction of the engine and cars attached thereto, and standing west of Lee street, on the track first north of the main track? Answer. No; he was looking north and northwest.” “Did the decedent, on the occasion of the accident, and before driving upon the main track, listen for the noise which ordinarily accompanies a train in operation? Answer. No evidence.” “On the occasion of the accident, how far could a person of ordinary hearing, listening at Lee street crossing, have heard the noise of train No. 5 approaching from the east? Give distance in rods. Answer. Ten or fifteen rods.” With respect to the answer, “No evidence,” we must regard it as equivalent to a finding that Platt did not listen before driving upon the track. The action was commenced in 1892, and must be ruled by the law as settled in this state prior to the act of 1899 (Acts 1899, c. 41). Hence the principle urged by appellee, that we must presume, in the absence of evidence to the contrary, that the deceased did listen before driving upon the track, cannot be accepted as applicable to this case. Under many decisions of this court, the plaintiff, to maintain his action, must allege and affirmatively prove the observance of due care on the part of the deceased; and it is firmly settled, as a matter of law for the court to declare, that the observance of due care at a railroad crossing requires the traveler to look and listen before going upon the track, if such precautions may be availing. The absence of contributory fault is a part of the plaintiff's case. It is a condition to the right of recovery, independent of the question of negligence on the part of the defendant. In effect,...