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

Decision Date16 December 1908
Docket NumberNo. 21,138.,21,138.
PartiesCLEVELAND, C., C. & ST. L. RY. CO. v. HILLIGOSS.
CourtIndiana Supreme Court

OPINION TEXT STARTS HERE

Appeal from Circuit Court, Madison County; J. F. McClure, Judge.

Action by James W. Hilligoss against the Cleveland, Cincinnati, Chicago & St. Louis Railway Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.Lovett & Slaymaker and C. E. Cowgill, for appellant. Kittinger & Diven, for appellee.

HADLEY, J.

Appellee sues to recover for injuries received in a collision between a freight car, belonging to appellant, and an electric street car, under his control, belonging to the Union Traction Company, on a grade crossing, in the city of Anderson, through the alleged negligence of appellant. There are two paragraphs of complaint, each of which was held good on demurrer for insufficient facts. There are two answers, a general denial, and one affirmative, to which a demurrer for insufficient facts was sustained, and an exception reserved. Verdict for $12,500, for which, over appellant's motion for a new trial, judgment was rendered. Error is assigned on all adverse rulings. The complaints are substantially the same. It is alleged in both that the plaintiff was the conductor in charge of an electric car, which was being operated by the Indiana Union Traction Company, on Meridian, a north and south street in the city of Anderson, under a franchise from said city; that appellant operates a steam railroad running east and west, which crosses the track of the Union Traction Company at grade in a populous part of said city, and has at the point of intersection a large number of tracks; that it was the duty of the plaintiff, as such conductor, to cause said car to be stopped before reaching appellant's tracks, and to then leave said car and go across said tracks to see and observe whether there are any approaching cars thereon, and, when none are approaching, to signal his motorman in charge of the electric car to come on across said track; that on the day of the accident the plaintiff was running his car southward, and, when it had approached within 15 or 20 feet of appellant's tracks, he caused his said car to be stopped, and he went southward in Meridian street on and across said tracks, and found thereon no trains or cars on any of the tracks of said steam railway approaching said crossing, and having thus observed that there were no steam trains, engines, or cars of any kind in motion, or attempting to cross said Meridian street crossing, the plaintiff signaled the motorman operating said car to proceed over appellant's said tracks. Said motorman obeyed said signal, and did proceed southward, on the street car track, across said railway tracks, and while said car was moving the plaintiff boarded it in safety. “Said defendant then and there carelessly and negligently, without any warning to the plaintiff, or any one else, carelessly and negligently ran, backed, and kicked one of its cars, with one of its engines, with great force and violence, from east to west, on and along one of its said tracks crossing Meridian street, and against said moving electric car so occupied and managed by the plaintiff, thereby crushing said electric car and causing great injury to the plaintiff.”

The objections presented to the complaint are: First. That the acts complained of fail to constitute negligence in the defendant; that the allegation that the defendant negligently ran, backed, and kicked one of its cars over the crossing, etc., without first giving warning to the plaintiff, or any one else, is insufficient to show a breach of any duty appellant owed appellee. We think otherwise. Second. That the complaint shows that appellee was guilty of contributory negligence, in this: It is alleged that the plaintiff went southward over the crossing, and observed no trains, engines, or cars, approaching the crossing, and did thereupon signal his motorman to proceed to make the crossing. “It is not alleged,” says appellant, “that he [the plaintiff] continued to look. It was his duty, not only to continue to look until he had passed the crossing, but to look at a time and place when and where his observations would be effective.”If, before crossing, he stopped and left his car, and walked southward across the railroad tracks to ascertain whether or not there were trains, engines, or cars approaching the crossing on any of said tracks, and seeing none, as he alleges, he signaled his conductor to proceed to make the crossing, whether he was justified in giving the signal to the motorman immediately after passing over the crossing and the nonappearance of approaching cars, or whether he should have stood on the crossing,and looked for approaching cars for any definite period, before signaling the motorman to advance, was, to say the least of it, a question of fact for the jury. As against the demurrer, we find no sufficient reason for condemning either paragraph of the complaint.

Did the court err in sustaining appellee's demurrer to the second paragraph of answer? Said answer, in effect, alleges that the cut of cars in charge of appellant's employés, and the street car in charge of the traction company's motorman, were each moving towards the crossing at a speed of about five miles per hour; and when they had arrived, to wit, the street car at a point 35 feet from the crossing, and the cut of cars 50 feet from the crossing, the cut of cars, which had the right of way, were then in plain view of said motorman, and he could see it, and had plenty of time to have stopped his car and avoided the collision and injury, but, on the contrary, he negligently continued to run his car forward, and reached the crossing point at the same time the cut of cars reached it, and thereby caused the collision and the plaintiff's injury. With reference to this part of the answer, appellant makes the point that it shows that the proximate cause of the plaintiff's injury was the negligence, not of appellant company, but of the Union Traction Company, in heedlessly running its car on to the crossing, in front of the moving cut of cars, and cites Thompson v. Citizens' St. Ry. Co., 152 Ind. 466, 53 N. E. 462, in support of the contention. However, the view of the answer that we have taken makes the question here raised unimportant, and we express no opinion concerning it.

It is further averred in the second paragraph of answer that the collision was caused by the joint acts of said traction company through its motorman operating said street car and the railroad company through its employés in moving a cut of cars over the crossing; and, if there was negligence on the part of the defendant, as alleged by plaintiff, in moving its cut of cars over the crossing, nevertheless the plaintiff's injuries would not have occurred had it not been for the act of the traction company's employé in negligently running said street car on to said crossing at the same time the defendant's cut of cars was in the act of crossing the same, as aforesaid; and so the defendant says “that, if the collision resulted in any particular through the negligence of its employés, it was through the joint act and joint negligence of the employés of said two companies that said collision and the plaintiff's injuries occurred.” It is then averred that on December 30, 1905, the plaintiff, for a valuable consideration, fully released the traction company from all liability arising from said collision, which release was in writing, and in the following words and figures: “Whereas, on the 24th day of November, 1905, James W. Hilligoss, while in the employ of the Indiana Traction Company, as conductor, was injured about the head, arms, body, and otherwise injured when freight car collided with South Meridian street car, in an accident which occurred on the lines of said traction company, at or near Meridian street crossing of Big 4 Railway. Now, therefore, in consideration of the agreements of said traction company herein contained to re-employ said employé for such time only as may be satisfactory to it, said James W. Hilligoss agrees to and does hereby receipt, release, and forever discharge the said traction company of and from any and all liability, claims and demands of every kind and character that he, the said employé, ever had against the said traction company to date, and especially from all claims and demands of any nature arising out of or due to the accident aforesaid, said traction company hereby agreeing, in consideration of the foregoing, to employ said employé so long as satisfactory to it, and not otherwise. Witness the name of the parties this 30th day of Dec., 1905. James W. Hillgoss. [Seal.] Indiana Union Traction Company. [Seal.] By Ellis C. Carpenter, Claim Adjuster.” And it is alleged that the release of the traction company was a full and complete release of the defendant, and...

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