Chicago & E.R. Co. v. Fretz

• Decision Date: 15 December 1909
• Docket Number: No. 21,330.,21,330.
• Citation: 90 N.E. 76,173 Ind. 519
• Court: Indiana Supreme Court
• Parties: CHICAGO & E. R. CO. v. FRETZ.

173 Ind. 519

90 N.E. 76

CHICAGO & E. R. CO.

v.FRETZ.

No. 21,330.¹

Supreme Court of Indiana.

Dec. 15, 1909.

Appeal from Circuit Court, Marshall County; Harry Bernetha, Judge.

Action by Bessie H. Fretz against the Chicago & Erie Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed and new trial ordered.N. O. Johnson, Holman & Stevenson, U. Z. Wiley, and Arthur H. Jones, for appellant. Arthur Metzler, Montgomery Emmons, and S. N. Stevens, for appellee.

MYERS, J.

Action by appellee for damages from being struck by one of appellant's trains at a highway crossing. The action was begun in Fulton county, and the venue changed to the Marshall circuit court, where there was a trial, and judgment for appellee.

The complaint was in three paragraphs. The third was withdrawn by an instruction of the court, and errors are assigned upon the ruling upon the demurrers to the first and second paragraphs; on overruling the motion for judgment upon the interrogatories and answers notwithstanding the general verdict; on overruling the motion for a new trial; and on overruling the motion in arrest of judgment. The second paragraph of complaint, after the formal parts, alleges that appellant's road extends in a northwesterly direction through Fulton county, and crosses a public highway leading from Leiters Ford to Rochester in Fulton county, running in a southeasterly direction, and that in traveling from Leiters Ford to Rochester on such highway appellee was compelled to cross the railroad at a point where the highway at and near the railway was about 60 feet wide and the traveled track thereof 10 feet wide; that on the night of April 14, 1906, about 10 o'clock, appellee in company with Ray Fretz was driving a horse and buggy on such highway from Leiters Ford to Rochester; that Ray Fretz had never traveled upon such highway, and neither he nor appellee had any knowledge whatever of the location of such railroad at the point where it is crossed by such highway; that the night was dark, drizzling, and raining, and in approaching such crossing, and to prevent getting wet, appellee was compelled to and did have the top of the buggy up, and the side curtains on; that neither of them had any knowledge of the approach of any train, and there was no light at or near the crossing to reveal its location; that they were driving cautiously, slowly, and carefully along said highway, and neither of them was familiar with the location of the crossing, nor did they know that the crossing was there, nor were they either familiar with the time of the running of trains on the railroad; that as appellee's horse approached the track, and just as Ray Fretz and appellee were about to drive the horse on the track, defendant carelessly and negligently ran and operated a through freight train on the railway from the west approaching, and over the crossing at the dangerous and reckless speed of 40 miles per hour; that the steam was wholly shut off; and negligently and carelessly failed to sound the whistle within 80 rods of the crossing or ring the bell, or to give any sound or signal of the approach of the train to, or passing the crossing; that as the train approached the crossing Ray Fretz quickly attempted to stop the horse, and leaped from the buggy and grabbed the horse by the rein, and by reason of the careless approach of the train the horse became unmanageable and intractable, and plunged upon the track, tearing away from the hold of Ray Fretz, and, owing to the negligent and reckless rate of speed of the train, they were unable to get the horse and buggy out of the reach of the train and locomotive, but that, so negligently and carelessly running the train, ran the same upon and against the horse and buggy and appellee, and the pilot struck the horse and buggy and appellee with great force and violence, and thereby jarred and jolted and carried appellee about one-fourth of a mile, and thereby threw and hurled her from the locomotive to the side of the track, whereby she was greatly injured, her injuries being set out specifically; that if the whistle had been sounded or the bell rung in approaching the crossing both she and Ray Fretz could and would have heard the signal, and the accident could and would have been avoided; that at and prior to the time of the injury she was free from pain and in almost perfect health; that her injuries were occasioned solely by the said negligence of appellant. The first paragraph is the same as the second except that the former omits the allegations as to appellee being in almost perfect health, and avers that defendant, in the operation and management of the train, carelessly and negligently failed to sound the whistle or ring the bell or give any signal of the approach of the train to the crossing; that, by reason of the steam being shut off and the rapid speed of the train, it made no noise in advance thereof that could be heard for any distance away from it, and no noise was heard by either of them.

Appellant assails the complaint principally upon the ground that it appears from the complaint that appellee knew that she had to cross the railroad in traveling upon the highway, and that, as she knew that fact, and as the night was dark and it was raining, and the side curtains on the buggy, she was obligated to the greater diligence, and that the complaint on its face discloses contributory negligence. The contention is based principally upon the allegation that in traveling upon the highway from Leiters Ford to Rochester appellee was “compelled to cross the railroad,” and that she could not be said to be ignorant of a condition which that allegation discloses she knew was to be encountered. We do not so interpret the allegation. It is an averment, after the occurrence of the accident, of the fact that in traveling upon such highway the railroad had to be crossed, by reason of the highway crossing it; it is the averment of an after-discovered condition, necessarily encountered in traveling on that highway, but not an averment that she had notice before that time that it did cross the railway. Beside it is specifically averred that neither of them had any knowledge that there was a crossing where it was, or the location of the crossing, and were each unfamiliar with the location of the crossing, the location of the railroad at the point of crossing, and the time of running trains, and had no knowledge of the approach of any train, and the night was dark, and there was no light to reveal the existence of the crossing; and we do not think the objection to the complaint is well taken on that point. Even if appellee knew there was a crossing of the railway to be encountered, she was not thereby precluded from traveling upon the highway, and it was not in itself negligent for her to do so, even on a dark and rainy night, or to do so with the side curtains on the buggy. The use of the highway and the crossing by appellee and the railroad was a reciprocal use, with the precedence in crossing with the railroad train, in which certain duties were imposed by statute upon the railroad's servants, and certain duties upon appellee by the common recognized law. She alleges that by reason of the rapid approach of the train without signal, and the want of knowledge of the existence of the crossing, the horse was driven so close that upon the approach of the rapidly moving train the horse became unmanageable and plunged upon the track, and the omission of the statutory duty of the railway's servants to give the signals required by statute, which omission is in and of itself negligence. She alleges her injury to have occurred from this failure to give the statutory signal, or any signal, setting out the conditions under which she approached the crossing and was injured. While it is true as a matter of law that, in traveling upon an unknown way in a dark and rainy night, and in an inclosed vehicle, more diligence and care is required than in an open vehicle in broad daylight, yet she had a right to travel that way and in an inclosed vehicle, and on a dark night, and whether she used care or caution or vigilance commensurate with the dangers reasonably likely to be encountered was a question for the jury under all the facts and circumstances bearing upon that question. But the rule of look and listen, and of increased vigilance from present peril, is taken out of the case by the allegations of ignorance as to the existence of the crossing, lack of anything to reveal its presence, or anything to call attention to any occasion specially for looking or listening, or anything to indicate the presence of danger, unless we can say that one, without any knowledge of the existence of a railway crossing, not apparent, and nothing to indicate its presence, or the presence of danger, is guilty of contributory negligence under any and all circumstances simply because he does not see or hear when there is nothing to invite hearing or seeing, or has nothing to warn him of danger; and it must be apparent that such rule would in most cases result in making a prima facie case of contributory negligence of the injured party from the mere fact of injury, and place upon such party the burden of establishing the want of contributory negligence, when the statutory rule is just the reverse. Whether the running of the train as charged, and the failure to give the signals, was the primary cause of the injury, and whether under all the circumstances appellee was guilty of contributory negligence in not seeing or hearing the approaching train, which she alleges gave no signal, and which she alleges she neither saw nor heard in time to prevent the horse becoming unmanageable and plunging on the track, was a question for the jury to determine under proper instructions. Lake Erie, etc., Co. v. Ford, 167 Ind. 205, 78 N. E. 969;Greenawaldt v. Lake Shore, etc., Co., 165 Ind. 219, 74 N. E. 1081.

What would be ordinary...