Cleveland, C., C. & St. L. Ry. Co. v. Markle
| Citation | 187 Ind. 553,119 N.E. 371 |
| Decision Date | 24 April 1918 |
| Docket Number | No. 22604.,22604. |
| Court | Supreme Court of Indiana |
| Parties | CLEVELAND, C., C. & ST. L. RY. CO. v. MARKLE. |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Randolph County; James S. Engle, Judge.
Action by Grant C. Markle against the Cleveland, Cincinnati, Chicago & St. Louis Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.
Superseding former opinion, 114 N. E. 440.
Samuel D. Miller, Frank C. Dailey, Wm. H. Thompson, W. H. H. Miller, and Frank L. Littleton, all of Indianapolis, for appellant. Leander J. Monks, of Indianapolis, Walter G. Parry, of Winchester, and John F. Robbins, of Indianapolis, for appellee.
On January 29, 1913, at Union street crossing of appellant's railroad tracks in the city of Winchester, Ind., one of appellant's locomotives pulling a fast freight train collided with a buggy drawn by two horses, in which appellee was riding, injuring him, and for such injuries this action was brought to recover damages. On the issue formed by the complaint and general denial a jury returned a verdict in favor of appellee. Appellant's motion for a new trial was overruled, and from a judgment against it this appeal was prosecuted. The errors assigned and relied on, six in number, will be considered in the order presented.
First, there was no error in overruling appellant's motion to make the complaint more specific. Board v. State, 179 Ind. 644, 102 N. E. 97;Adams Express Co. v. Welborn, 59 Ind. App. 330, 108 N. E. 163, 109 N. E. 420;Rock Oil Co. v. Brumbaugh, 59 Ind. App. 640, 108 N. E. 260.
[1][2][3] The second error, the overruling of appellant's demurrer to the complaint, is predicated upon the ground that the complaint affirmatively shows that appellee was guilty of contributory negligence. Appellant's contention in this respect is based on allegations in the complaint to the effect that, when appellee approached the crossing, he stopped for a passing freight train on the side track headed west. When this train cleared the crossing, it stopped. The locomotive attached thereto while moving and standing made a loud rumbling noise, and emitted large volumes of steam and smoke, which drifted over and partially enveloped and obscured the view of the main track west of the crossing and the direction from which the train came that struck appellee. It is claimed that these facts show a transient obstruction, bringing this case within the doctrine announced in the class of cases of which Oleson v. Lake Shore, etc., R. Co., 143 Ind. 405, 42 N. E. 736, 32 L. R. A. 149, is one. All of these cases are distinguishable from the case at bar. In the Oleson Case the opinion shows that the train was moving at a speed of 15 miles per hour, and the obstruction-large quantities of smoke- was rapidly being cleared away when Oleson attempted to cross. The obstruction there was clearly transient. In the case at bar the facts are widely different. Here, when appellee sought to cross the tracks, the train on the side track was standing still. How long it would remain there was problematical. On that subject appellee was not advised, or at least the complaint is silent on that question and the purpose for which it stopped. It had cleared the crossing, and, from aught appearing, the crossing was open to use. Clearly the alleged obstructions were in a sense permanent, and should be so considered in determining the question whether or not appellee used due care. On the question of negligence it may be noted that appellee not only stopped before attempting to cross the tracks, but, as he proceeded toward and along the street over the crossing, he looked both ways and listened attentively for approaching trains, but saw none in time to avoid the collision. The complaint charges appellant with other acts of negligence in operating the train which struck appellee, such as the violation of an ordinance of the city regulating the speed of trains, running the train at a high and dangerous rate of speed, and failing to sound the whistle or ring the bell as required by statute. Of course, these various acts of alleged negligence would not relieve appellee from such care as an ordinarily prudent person would exercise under the same or similar circumstances to avoid danger, but they are a part of the circumstances and surroundings to be considered as bearing upon appellee'sconduct. In this case contributory negligence would be a defense, but it cannot be sustained as a matter of law unless the pleaded facts justify no other reasonable conclusions, or, as often said, when the facts are of a character to be reasonably subject to but one inference. Indiana Union Traction Co. v. Love, 180 Ind. 442, 99 N. E. 1005;Grand R. & I. R. Co. v. Resur, 117 N. E. 259.
“There is no fixed standard in the law by which the court is enabled to arbitrarily say in every case what conduct shall be considered reasonable and prudent, and what shall constitute ordinary care under any and all circumstances.” Grand Trunk, etc., R. Co. v. Ives, 144 U. S. 408, 12 Sup. Ct. 679, 36 L. Ed. 485.
Applying the law as affirmed by numerous decisions of this state to the facts exhibited by the complaint, requires a denial of appellant's contention. Indiana Union Traction Co. v. Love, supra; Greenawaldt v. Lake Shore, etc., R. Co., 165 Ind. 219, 74 N. E. 1081;Stoy v. Louisville, etc., R. Co., 160 Ind. 144, 152, 66 N. E. 615;Cleveland, etc., R. Co. v. Rumsey, 52 Ind. App. 371, 100 N. E. 782.
[4] The third error is addressed to the complaint for want of facts. The act concerning proceedings in civil cases approved April 7, 1881, was amended March 4, 1911 (Acts 1911, p. 415; section 348, Burns 1914), and since that time an assignment of error attacking the complaint for want of facts on appeal has been held to present no question. Wagner v. Wagner, 183 Ind. 528, 109 N. E. 47;Robinson v. State, 177 Ind. 263, 97 N. E. 929;Stiles v. Hasler, 56 Ind. App. 88, 104 N. E. 878;Graham v. Henderson Elevator Co., 60 Ind. App. 697, 111 N. E. 332.
[5] The fourth error, based on the court's refusal to instruct the jury to find for the defendant, is not a ground for an independent assignment of error. White v. State, 183 Ind. 649, 109 N. E. 905, Ann. Cas. 1917B, 527,Deeter v. Burk, 59 Ind. App. 449, 107 N. E. 304.
[6] It is next insisted that the answers to the interrogatories show a state of facts so antagonistic to the general verdict that both cannot stand. The law as to when the general verdict will give way to such answers has been affirmed and reaffirmed so often that we will not now repeat it. It is enough to say that the general verdict carries to its support all intendments, inferences, and presumptions which may be drawn from any evidence admissible under the pleadings, and is a determination of all material issues in favor of the party for whom it is returned. Consolidated Stone Co. v. Summit, 152 Ind. 297, 53 N. E. 235;American Car, etc., Co. v. Vance, 177 Ind. 78, 87, 97 N. E. 327;Inland Steel Co. v. Smith, 168 Ind. 245, 247, 80 N. E. 538;Indiana Quarries Co. v. Farmer, 184 Ind. 411, 110 N. E. 549.
The question here is: Must the general verdict yield to the interrogatories and answers thereto, with no inferences or presumptions in their favor? Answers to interrogatories bring into the record findings on specific facts. These facts or fact, as the case may be, must relate to some material issue, and be incompatible with the general verdict upon any reasonable hypothesis before it can be said that the general verdict and the facts so specially found are in irreconcilable conflict. Indianapolis Street R. Co. v. Kane, 169 Ind. 25, 35, 80 N. E. 841, 81 N. E. 721;Chicago, etc., R. Co. v. Lawrence, 169 Ind. 319, 329, 79 N. E. 363, 82 N. E. 768;Cleveland, etc., R. Co. v. Hayes, 167 Ind. 454, 458, 79 N. E. 448.
[7] The complaint charges several acts of negligence on the part of appellant. The general verdict was a finding in appellee's favor that one or more of these acts was the proximate cause of his injury. It was also a finding that appellee was not guilty of any negligence which proximately contributed to his injury. The answers of the jury relied on by appellant show that, on account of the noise made by the locomotive standing on the passing track near the crossing, appellee could not have heard the rumble and noise of the approaching locomotive on the main track before it struck him; that the steam and smoke from the locomotive on the passing track obscured a view of the main track west for about 100 feet, and, had appellee remained 25 feet south of the tracks for a very short time longer than he did, the accident would not have happened; that appellee knew that trains of appellant passed daily through the city of Winchester, and over the crossing in question, at a speed in excess of four miles per hour, in violation of an ordinance of the city; that he heard the crossing signal bell ringing and knew the purpose for which the bell was installed and operated when he started across the tracks, and it was ringing at the time of the accident. They also show that the east end of the train on the...
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