Chicago & E.R. Co. v. Biddinger

• Decision Date: 25 October 1916
• Docket Number: No. 9122.,9122.
• Citation: 63 Ind.App. 30,113 N.E. 1027
• Court: Indiana Appellate Court
• Parties: CHICAGO & E. R. CO. v. BIDDINGER.

63 Ind.App. 30

113 N.E. 1027

CHICAGO & E. R. CO.

v.BIDDINGER.

No. 9122.

Appellate Court of Indiana, Division No. 1.

Oct. 25, 1916.

Appeal from Circuit Court, Miami County; Joseph N. Tillett, Judge.

Action by Err Biddinger against the Chicago & Erie Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

See, also, 109 N. E. 953.

W. O. Johnson and Bull & Johnson, all of Chicago, Ill., and Antrim & McClintic, of Peru, for appellant. Arthur Metzler, of Rochester, for appellee.

HOTTEL, J.

This is an appeal from a judgment in appellee's favor in an action brought by him against appellant for damages alleged to have resulted from injuries received while attempting to cross appellant's railroad tracks at a public street crossing in the city of Rochester, Ind. The complaint was in two paragraphs, each of which was challenged by a demurrer. This demurrer was overruled and exceptions properly saved. The only answer was a general denial. There was a trial by jury, and interrogatories submitted to it for answer. Upon the return of a general verdict for appellee, with the answers to interrogatories, appellant moved for judgment on such answers, which motion was overruled, and exceptions properly saved. These several rulings of the trial court are assigned as error, and relied on for reversal.

The only objections to each paragraph of the complaint stated in the respective memoranda filed with the demurrers thereto are the same, viz.: (1) That no negligence on the part of appellant is disclosed; (2) that it is disclosed “by fair inference from the alleged facts as pleaded that the plaintiff was guilty of negligence.”

The substance of that part of the complaint necessary to an understanding of said objection thereto, and our disposition thereof, in as follows: Appellant's railroad passes through the city of Rochester, Ind., in an easterly and westerly direction, and crosses almost at right angles the main street in said city, which is the continuation through said city of the highway known as the “Michigan Road.” Such street or road is the principal street of Rochester, and is much used by the public at the point where it crosses appellant's railroad. On April 1, 1911, when appellee was injured, there were located on the west side of said street and south of and near said crossing, a large number of dwelling houses and lumber sheds, and on the east side of said street and the south side of said railroad and near thereto there were located a number of dwelling houses, piles of tile, forest trees, an elevator, and freight cars standing on the switch south of appellant's main track. On account of these obstructions, appellee could not, and did not, see or hear any train or engine approaching from the east at the time he was injured as hereinafterset out. On April 1, 1911, appellee was in a buggy driving north on said street, intending to pass over said crossing, and-

“ as he approached and entered near and to said crossing, he proceeded carefully, and exercised all due care and caution to hear and see any train, engine, or locomotive that might be approaching said crossing either from the east or the west; and, as plaintiff was about to pass over said crossing at the intersection of said railway and main street, appellant carelessly and negligently ran its engine and train of cars on and against plaintiff and his horse and buggy with great force and violence, and which engine and train of cars were carelessly and negligently run at a high and dangerous rate of speed, to wit, about 50 miles an hour;” that “said defendant and its servants, who were then operating said engine and train of cars and controlling the same, carelessly and negligently failed and omitted to sound the whistle, or ring the bell on said locomotive and train so approaching said crossing when the same was within 100 rods from said crossing until about 150 feet therefrom, and at that moment for the first time a whistle on said locomotive was sounded, and from the time said train first came into view and the time it struck plaintiff there was not sufficient time by any human effort to escape, and plaintiff says, further, that the defendant carelessly and negligently failed and omitted to maintain a watchman, flagman, person, or gate at said crossing to notify plaintiff of the approach of said engine and train of cars, notwithstanding that on said day and previous thereto said crossing was much used by the public, as many as one or more vehicles passing over the same in the interval of every two minutes, as well as many pedestrians crossing the same; *** that solely by and through the negligence of the defendant, as aforesaid, said engine and train of cars then and there ran with great force and violence upon and against the plaintiff and said buggy, and the plaintiff was then and there and thereby thrown with great force and violence from and out of said buggy, and was thereby injured. *** (Our italics.)”

The second paragraph, except as hereinafter indicated, is substantially the same as the first, and contains additional averments to the effect that the city of Rochester, on the day in question, had in force an ordinance, duly passed by the common council, which provides as follows:

“Sec. 133. No person shall run a locomotive or steam railway car faster than twenty-five miles an hour within the limits of the city of Rochester.

Sec. 134. Any person violating section 133 of this ordinance shall, upon conviction thereof, be fined in any sum not exceeding $100.”

[1] In support of its first objection, supra, to the first paragraph of the complaint, appellant insists that it is not alleged that appellant's train approached from a point 80 rods or more from the crossing where appellee was injured, and hence that the duty to give the signals required by statute is not shown; that when one predicates his cause of action on a statute, he must bring himself within it. That the italicized words, supra, announce a correct legal proposition may be conceded, but its applicability in this case depends on the correctness of appellant's assumption that the sufficiency of this paragraph of complaint rests alone upon the sufficiency of a charge of the violation of the statute requiring signals, and the further assumption that the averments here under consideration do not show that appellant's train approached from a point more than 80 rods from the crossing. This paragraph of complaint in fact charges several acts, either of which, if sufficiently charged, would make it good against demurrer. If, however, such other acts of negligence be entirely disregarded, the averments, relating to the failure to give the said statutory signals, are sufficient, in and of themselves, to show that appellant was guilty of negligence:

[2] (1) Because they show, at least by reasonable inference, that the train which injured appellee approached from a point not less than 100 rods east thereof, and that from such point the whistle on said train was not blown until the train was about 150 feet from said crossing. We are of the opinion that said averments measure up to the requirements of the cases holding that only necessary inferences can be indulged in favor of a pleading, but in any event they are sufficient under the more recent holdings, which permit reasonable inferences to be drawn in favor of a pleading. Domestic Block Coal Co. v. De Armey, 179 Ind. 592, 100 N. E. 675, 102 N. E. 99.

[3][4] (2) Said averments expressly show that the bell on such train was not rung continuously as it approached the crossing, which omission was in itself a violation of the statute, and hence negligence, and, independent of the statute “it is the duty of those in charge of a railroad train to give reasonable and timely warning of its approach to a *** highway crossing.” Pittsburgh, etc., R. C. v. Terrell, 177 Ind. 447, 456, 95 N. E. 1109, 1113, 42 L. R. A. (N. S.) 367.

What we have said disposes of appellant's first objection supra to each paragraph of the complaint.

However, it is urged against the averments attempting to charge negligence on account of the speed of the train and the failure to provide a flagman, that these averments are not sufficient because there is no averment that there was any legislative or municipal requirement, either limiting the speed of trains, or providing for a gate or flagman at the crossing where appellee was injured, and that, in the absence of such requirements, neither the running of the train at high speed over the crossing, nor the failure to provide a gate or flagman thereat, is negligence per se.

[5] The legal proposition involved in appellant's contention is substantially correct, but while the running of a train over a crossing at high speed, or without any flagman or watchman stationed at the crossing is not negligence per se, in the absence of a statute making it so, yet such operation of a train may, in fact, constitute negligence, depending upon all the facts and circumstances surrounding the particular case. Wabash R. Co. v. McNown, 53 Ind. App. 116, 123, 99 N. E. 126, 100 N. E. 383, and cases there cited.

[6] The rules as to operation of trains in city and country are different. The rule which generally obtains, permitting a train to be run in the country at a high speed without the imputation of negligence, does not obtain as to trains when operated through populous cities and over the much-traveled crossings therein. Cleveland, etc., Ry. Co. v. Lynn, 171 Ind. 589, 598, 85 N. E. 999, 86 N. E. 1017;Pittsburgh, etc., Co. v. Lynch, 43 Ind. App. 177, 180-182, 87 N. E. 40;Wabash R. Co. v. McNown, supra, 53 Ind. App. 123, 99 N. E. 126, 100 N. E. 383.

The averments above indicated show that appellee was a traveler on said street, attempting to cross appellant's tracks, and hence show that appellant owed to appellee the duty of ordinary care. They also show that it failed to discharge that duty by carelessly and negligently...