Chicago, S. S. & S. B. R. Co. v. Sagala

• Decision Date: 17 November 1966
• Docket Number: No. 1,No. 20410,20410,1
• Parties: CHICAGO, SOUTH SHORE AND SOUTH BEND RAILROAD COMPANY, Appellant, v. Frank SAGALA, Jr., a minor by next friend and father, Frank Sagala, Sr., Appellee
• Court: Indiana Appellate Court

Page 371

221 N.E.2d 371

140 Ind.App. 650

CHICAGO, SOUTH SHORE AND SOUTH BEND RAILROAD COMPANY, Appellant, v. Frank SAGALA, Jr., a minor by next friend and father, Frank Sagala, Sr., Appellee.

No. 20410.

Appellate Court of Indiana, Division No. 1.

Nov. 17, 1966.

Herbert Fehner, Michian City, George W. Douglas, Douglas, Douglas & Douglas, Valparaiso, for appellant.

Crumpacker & Abrahamson, Owen W. Crumpacker, Harold Abrahamson, Hammond, Chester, Clifford, Hoeppner & Houran, Winfield L. Houran, Valparaiso, for appellee.

CARSON, Judge.

The plaintiff-appellee brought this action in the Lake Circuit Court to recover damages for personal injuries suffered when he was struck by a train owned by the defendant-appellant. The cause was venued to the Porter Circuit Court where it was tried.

The issues were formed by the amended complaint of the appellee and the answer of two paragraphs of the appellant. The defendant-appellant at the trial moved for a directed verdict at the close of the plaintiff's evidence which motion was overruled and again at the close of all of the evidence which was overruled. The cause was submitted to the jury and a verdict was returned for the appellee in the sum of $33,166.00.

The defendant filed a motion for new trial which was overruled and from which ruling this appeal was taken. Said motion for new trial contained eleven specifications of error.

The appellant assigned one error: That the court erred in overruling appellant's motion for new trial.

The facts, concisely stated, are as follows:

Frank Sagala, Jr., a boy within several days of his 10th birthday, was struck and injured by a regularly scheduled passenger train operating on an elevated railroad track in the city of Hammond, Indiana. At the time of the injury the appellee, Frank Sagala, Jr. was playing on the Ash Street Bridge over which defendant's tracks ran.

At the trial, evidence was submitted that children of various ages played almost daily on or about the elevated bridge over which the trains of defendant traveled and that such fact was known by the appellant. Testimony was elicited from the appellee to the effect that he was aware of the danger involved and that he had been warned against playing upon this bridge. There was conflicting evidence as to the distance at which the plaintiff was first seen by the engineer operating said train; testimony being submitted upon this point varied from 300 feet to approximately 600 feet. There is some question, due to a conflict in the evidence, as to when a warning was sounded by the train if at all. There is also a question as to whether the emergency brakes were applied before striking the plaintiff.

We shall first consider the specification in appellant's motion for new trial number 7D which assigns error in the giving of appellee's tendered Instruction No. 27 which is as follows:

'Ladies and Gentlemen, you are instructed that where the railroad runs through thickly populated portions of a city, town, or village, where people frequently go upon or pass over the tracks for such length of time that the employees of the railroad company may be charged with notice, or when such notice is directly given them, then in all such cases, although the injured person be a trespasser, still the railroad company, having reason to expect that someone may be on or near the tracks, must act accordingly, and keep a lookout and give timely warning in order to prevent a collision, and a failure to exercise ordinary care in keeping a lookout and giving warning may be negligence for which even a trespasser is entitled to recover provided he is not guilty of contributory negligence which is the proximate cause of the injury.'

The appellant objected to the giving of this instruction arguing that said instruction authorized a finding by the jury that the defendant was negligent prior to the discovery of a trespasser upon its right-of-way; that it placed upon the defendant a duty to anticipate and to keep a lookout for trespassers prior to actually seeing them on or near the tracks. Appellant also argues that said instruction allowed the jury to find against the appellant on the basis of failure to anticipate and guard against danger to a trespasser who was not incapacitated nor a minor non sui juris. Further argument against this instruction is propounded by the appellant in that the instruction was erroneous as applied to the facts in controversy in that it refers to a railroad running through thickly populated portions of the city where people frequently go upon or pass over the tracks, whereas the evidence in this case shows that the railroad tracks at the place of the accident were upon an elevated road with no grade crossings, streets or lanes of any kind.

The case at bar requires us to determine the type of duty placed upon the appellant as regards its relation towards those who trespass upon its property. The standard long followed by our courts in determining actionable negligence in such a case is as follows:

'Did the owner of the premises under the particular circumstances of the case involved owe any duty to the party injured on his premises, and, if so, was such duty violated, and did such violation result in the injury complained of?' Cleveland, etc., R. Co. v. Means (1914), 59 Ind.App. 383, 395, 104 N.E. 785, 789, 108 N.E. 375.

The general rule as regards the owner or occupant of premises is that no duty is owed to a trespasser thereon except to refrain from willfully or intentionally injuring him after discovery of his presence. Cleveland, etc., R. Co. v. Means, supra. The duty of the railroad company was succinctly stated in the case of Cleveland, etc., R. Co. v. Means, supra, 407, 104 N.E. 793 to be the following:

'It does not follow from what we have said that a railroad company is an insurer of the safety of children who come on its premises, either as licensees or trespassers, or that it at all times and at all places owes them the duty of any care. Its obligation...