Cleveland, C., C. & St. L. Ry. Co. v. Coffman

• Decision Date: 27 May 1902
• Citation: 30 Ind.App. 462,64 N.E. 233
• Parties: CLEVELAND, C., C. & ST. L. RY. CO. v. COFFMAN.
• Court: Indiana Appellate Court

30 Ind.App. 462

64 N.E. 233

CLEVELAND, C., C. & ST. L. RY. CO.

v.COFFMAN.¹

Appellate Court of Indiana, Division No. 2.

May 27, 1902.

Appeal from circuit court, Marion county; Henry Clay Allen, Judge.

Action by Jerome B. Coffman against the Cleveland, Cincinnati, Chicago & St. Louis Railway Company. From a judgment for plaintiff and the overruling of a motion for a new trial, defendant appeals. Reversed.

Elliott, Elliott & Littleton, for appellant. Ritter & Doan, for appellee.

COMSTOCK, J.

The appellee brought the action in which the judgment from which this appeal is prosecuted was rendered to recover for injuries to his person alleged to have been caused by the negligence of the appellant. The complaint is in two paragraphs. To each paragraph demurrers were overruled. Issue was formed by an answer of general denial. Trial by jury, and verdict for plaintiff.

The specifications in the assignment of errors allege: (1) That the trial court erred in overruling the demurrer to the first paragraph of the complaint; (2) in overruling the demurrer to the second paragraph of the complaint; (3) in overruling the appellant's motion for a new trial. The first paragraph of the complaint alleges that the defendant is a railway corporation; that its line of railway crosses a public street in the city of Indianapolis known as “Fletcher Avenue”; that at said crossing there are two main tracks and three side tracks; that the crossing is at grade; that on the 31st day of December, 1898, plaintiff was driving an oil wagon along the said avenue, “and was, without fault or negligence on his part, approaching the said crossing from the east side thereof”; that it was dark, and a strong wind was blowing; that he did stop the vehicle which he was driving, did look and listen, and did not see any approaching train; that “he listened for the sound of the gong which the defendant had placed at the said crossing to warn any person on said highway”; the gong did not ring; that the defendant negligently and with knowledge suffered the same to be out of repair so that the same would not ring; that at the time plaintiff came upon the defendant's track a locomotive of the defendant “was backing”; that the locomotive was run at the speed of 15 miles an hour, in violation of an ordinance of the city of Indianapolis; that the defendant was negligently backing said engine without any person thereon as required by the ordinance of said city; that the defendant negligently failed to ring the bell of the engine; that the defendant negligently ran the engine without any light thereon; that cars on the side track obstructed the plaintiff's view. The paragraph pleads the municipal ordinance. It alleges a violation of sections 1, 2, and 11 thereof in the manner of operatingsaid engine and the speed at which it was run. The second paragraph is substantially the same as the first, except that it does not plead the municipal ordinance. It alleges the facts as to the location and the surroundings of the crossing in substantially the same language as the first paragraph employs; it alleges that the defendant was running the engine backward, and alleges that the speed was 15 miles an hour, that the bell was not rung, that no watchman was stationed at the crossing to give warning. The motion for a new trial assails the rulings of the trial court in admitting and excluding evidence and in giving and refusing instructions. It also asserts that the verdict is contrary to law, and that it is not sustained by sufficient evidence. We have set out substantially the averments of the complaint.

No objection is pointed out to the first paragraph. The second, under the decisions of the supreme and of this court, is sufficient to withstand a demurrer for want of facts. In discussing the action of the court in overruling the motion for a new trial it is argued that there was error in permitting evidence to go to the jury as to a gong having been placed at the crossing by the appellant, because: “First. There was no duty prescribed, either by statute or by ordinance, requiring the defendant to place or maintain a gong at the crossing; nor was there any such duty prescribed by the common law; neither are there any facts showing that the defendant created any such duty, and it was error to permit evidence to go to the jury as to the gong having been placed at the crossing. Second. The appellant was not under a duty to provide any other warning or signals at the crossing than such as were required by statute or by ordinance. Third. The evidence as to the placing and maintenance of an electric gong was incompetent, insomuch as the appellant was not under a duty to provide such a means of warning, and the appellee had no right to assume that a gong would be provided or maintained. Fourth. The evidence was incompetent for any purpose, for the plaintiff testified that at many times prior to the accident he passed over the crossing, and the gong did not sound or ring, so that he had no right whatever to rely upon a signal being given by the sounding of the gong. Fifth. There was no evidence showing any negligence of defendant in relation to the gong.” The appellee testified as to the location and purpose of the gong, and that he had heard it ring before trains passed the crossing. He testified that he had passed over the crossing upon occasions when it did not ring, but he did not testify that he had passed over the crossing at any time when the gong did not ring on the approach of a train. The question decided in Railway Co. v. Yundt, 78 Ind. 373, 41 Am. Rep. 580, does not differ in principle from the question before us. We quote from the opinion: “If the defendant, for a considerable time before the accident, kept a flagman at the crossing to give signals on the approach of trains, and if the...