Cincinnati v. Gaines

• Citation: 104 Ind. 526,5 N.E. 746
• Court: Supreme Court of Indiana
• Decision Date: 24 March 1886
• Parties: Cincinnati, I., St. L. & C. Ry. Co. v. Gaines.

104 Ind. 526

5 N.E. 746

Cincinnati, I., St. L. & C. Ry. Co.

v.Gaines.

Supreme Court of Indiana.

Filed March 24, 1886.

Appeal from Tippecanoe circuit court. On petition for rehearing. See 4 N. E. Rep. 34.Coffroth & Stuart, for appellant.

Langdon & Gaylord, for appellee.

Mitchell, J.

The argument of the learned counsel in support of the petition for a rehearing is directed to the maintenance of two propositions: First, that the court erred in assuming, in the principal opinion, that the special findings predicated no negligence upon the failure of the railroad company to comply with its statutory duty as charged in the second paragraph of the complaint; second, that we are in error in holding, in the absence of any finding to the contrary, that the presumption must be indulged that sounding the whistle by the engineer was in pursuance of some occasion rendering such conduct proper and necessary.

Respecting the first proposition, a careful re-examination of the special findings confirms us in the opinion that the liability of the defendant was not predicated upon the failure of the defendant to execute the signals required by law. While the findings show that the signals were not given in exact conformity with the very letter of the statute, there appears to have been a substantial compliance with the law. Besides, there is no possible connection, near or remote, between the injury and the failure to give the signals, in literal compliance with the statute, instead of the manner in which warning of the approaching train was given. The finding is that one “long blast,” lasting five or six seconds, was given. The signal prescribed is three distinct sounds of the whistle. The purpose in requiring signals is to give warning of the approach of trains. One “long blast” occupied more time than would have been required to give double the number of distinct sounds prescribed by the statute. It probably made double the amount of noise. It could hardly be said, if six, instead of three, distinct blasts of the whistle had been given, that there had been a failure to give the necessary warning by signaling the approach of the train. The statutory warning must be given. If more than the statute requires is given, the railroad company may be liable to some one who is injured by the excess, but not for a failure to give the signals. Upon the former hearing, this second paragraph of the complaint, which it is now claimed the special finding supports, was subjected to criticism by opposing counsel, as not being sufficient on demurrer. It was then said by counsel, who now insists that we fell into error in assuming that the special finding predicated no negligence on the failure to give the signals as charged in the second paragraph, that “the overruling of the demurrer to this paragraph, if erroneous, has become, by the events of the trial, immaterial and harmless, because the finding of the court is on the first paragraph.” Counsel then proceed in their argument to demonstrate the proposition above stated, and close the discussion of this subject with the following pertinent and emphatic assertion:

“The language of the learned judge who drew the finding is so explicit that there is no room for even a captious reader to doubt that the finding is bottomed wholly on the negligence of the appellant, as set forth in the first paragraph, as contradistinguished from the liability for a failure to comply with the statute.”

Our own examination of the special findings, coupled with the vigorous argument of counsel, induced us to accept the view thus forcibly urged. Assuming that counsel had, for sufficient reasons to themselves, arrived at a different conclusion, our opinion in respect of the matter nevertheless is, barring the imputation of captiousness, well expressed by the language quoted from their original brief.

As respects the second proposition, it is now contended, the special findings being silent upon the subject of the necessity or propriety of sounding the whistle when the engine came upon the bridge, which was in part the occasion of the fright of plaintiff's team, the conclusion must be that it was unnecessarily and improperly sounded. The action having been brought to recover damages for alleged negligence, it is of course not disputed that the burden of proving negligence was on the plaintiff, nor is it claimed, as indeed upon reason and authority it could not be, that the...