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

• Decision Date: 17 April 1913
• Docket Number: No. 22,115.,22,115.
• Citation: 101 N.E. 479,179 Ind. 415
• Court: Indiana Supreme Court
• Parties: CLEVELAND, C., C. & ST. L. RY. CO. v. PACE.

179 Ind. 415

101 N.E. 479

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

v.PACE.

No. 22,115.

Supreme Court of Indiana.

April 17, 1913.

Appeal from Circuit Court, Randolph County; J. G. Leffier, Special Judge.

Action by William B. Pace, administrator, etc., against the Cleveland, Cincinnati, Chicago & St. Louis Railway Company. Judgment for plaintiff, and defendant appeals. Reversed, with instructions to sustain defendant's motion for judgment upon the interrogatories and answers, and to render judgment for defendant.

Transferred from the Appellate Court under section 1405, Burns' Ann. St. 1908.

J. W. Macy, A. L. Nichols, and A. L. Bales, all of Winchester, for appellant. F. S. Caldwell and W. G. Parry, both of Winchester, for appellee.

MYERS, C. J.

This was an action by appellee by complaint in two paragraphs, one alleging a negligent and the other a willful killing of appellee's decedent. Each paragraph was unsuccessfully assailed by demurrer, and these rulings are assigned as error.

[1] No question is presented on these assignments for the reason that neither the demurrers nor their substance are set out, nor is there the slightest reference in the brief as to what was the cause of demurrer, nor is there attempted to be pointed out any weakness of either paragraph of the complaint.

The third assignment is addressed to the alleged error of the court in overruling the motion of appellant for a judgment non obstante. No interrogatory or answer, claimed to be 92 in number, is set out in the briefs. Appellant sets out what it claims to be the substance of the interrogatories and the answers thereto in narrative form. Appellee refers to the interrogatories and answers by number, and, without setting out any of them, claims that certain of them, referred to by number, are in conflict with others, referred to by number, and nullify each other; that as a whole they do not negative the existence of facts admissible in evidence under the issues, which would nullify the force of some of them, especially as to obstructions, seeing and hearing, looking and listening, the speed of the train, locations as related to the speed of the train which killed appellee's decedent, etc.

Appellee does not challenge the correctness of the recital of the findings, and we therefore take them as stated. The motion is to be considered in the light of the complaint, the answer, a general denial, and the findings themselves.

The negligence charged in the first paragraph is that the defendant is a corporation, owning, controlling, and operating a line of railroad from Cleveland, Ohio, to Indianapolis, Ind., running through the incorporated town of Farmland, Ind., from east to west, and that the town was duly incorporated on and prior to December 7, 1906; that there was at that time an ordinance enacted existing and then in full force, regulating the speed of railroad trains within its limits, by the terms of which it was made unlawful for appellant to operate its train over its road within the corporate limits at a higher rate of speed than eight miles an hour, and penalty was prescribed therein; that Farmland was at that time a populous town of 1,500 people; that its streets, running north and south, were crossed by appellant's line of railroad at nearly right angles, and especially Main street, near the center of the town and along which, it is alleged, were located its business houses and its population dwelt; that along this street the people of the town and surrounding country were continually passing and repassing, and crossing over appellant's line of road; that on the 7th day of December, 1906, and prior thereto, there was a warehouse and elevator on the east side of Main street, and immediately south of appellant's railroad, the west end of which extended out to and was flush with the east line of said street in such a manner as to obstruct the view and sound of an approaching train from the east; that appellant had negligently set box cars on a side track south of the main track, and extending out to the east line of said street so as to further obstruct the view of the east; that because of these obstructions it was impossible for persons approaching the railroad on Main street from the south to see an approaching train from the east until they had reached a point within 15 feet of the main track; that Jesse Pace, appellee's decedent, and his wife, who lived north of the town, were on Main street south of said railroad, and started home together on Main street; that they were in a buggy driven by a well-broken and gentle horse and approached the railroad from the south; that they drove in a prudent and careful manner as they approached the crossing, and looked both ways, and listened for approaching trains, but saw and heard neither; that there was at that hour no train due; that as they approached the track they continued to look and listen for approaching trains, until the horse was about entering upon the main track, when, suddenly and without warning, the defendant, by it agents and servants, ran its locomotive and cars over its track from east to west at an unlawful rate of speed, and contrary to and in violation of said speed ordinance, to wit, 60 miles an hour; and it is alleged also that appellant negligently failed to sound the whistle of the engine at a distance of 80 to 100 rods as required by the statute; that the decedent and wife, relying upon appellant to operate its engine in a careful and lawful manner, and at a rate of speed not in excess of that fixed by the ordinance, approached the railroad, and just as the horse was about to enter upon the track from the east, but too late to avoid a collision, the horse entered upon the track, and was immediately struck by defendant's locomotive, the buggy destroyed, and Pace and wife instantly killed. It is alleged that all these acts were negligently and carelessly done, and that the decedent and wife would not have been so struck and killed if appellant had operated its locomotive and train of cars at the lawful speed of 8 miles per hour.

The second paragraph alleges the same facts as the first, save that it is alleged in this paragraph that all of the alleged wrongful acts were done and performed by the appellant purposely and willfully, and that they were done with the purpose and intent of killing Jesse Pace, and that his death was wholly the result of the willful misconduct of appellant.

The substance of the interrogatories and answers is claimed to be as follows, as stated in appellant's brief: That the accident occurred on appellant's railway where it crosses Main street in the town of Farmland. The street at that point was 80 feet wide from property line to property line, with sidewalks 14 feet wide on each side of that part of the street which lies south of the appellant's road. That there was an interurban railway track running north and south along the center of Main street, and crossing appellant's road at right angles. Main street itself ran due north and south at this point, crossing the railway at right angles. That appellant maintained three tracks at this crossing; the main track lying between the other two. That south of the main track, and parallel thereto, ran a track called the commercial or house track, and that north of the main track, and parallel therewith, ran a track called the passing switch or siding. That the distance between the south rail of the Main track and the north rail of the commercial or house track was 18 feet, and between the south rail of the Main track, and the south rail of the commercial or house track, was 22 feet, 8 inches, at the Main street crossing. That there was an elevator on the east side of Main street at the crossing which abutted on the Main street sidewalk, the north line of which was 9 2/3 feet south of the south rail of the commercial or house track. That at this time there were two box cars standing on the commercial or house track, the first about 180 feet east of the east line of Main street, the west end of the second car about 3 feet east of...