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

• Decision Date: 04 April 1912
• Docket Number: No. 21,650.,21,650.
• Citation: 98 N.E. 67,177 Ind. 311
• Court: Indiana Supreme Court
• Parties: CLEVELAND, C., C. & ST. L. RY. CO. v. LYNN.

177 Ind. 311

98 N.E. 67

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

v.LYNN.

No. 21,650.

Supreme Court of Indiana.

April 4, 1912.

On rehearing. Former judgment adhered to upon condition.

For former opinion, see 95 N. E. 577.

Leonard J. Hackney, Frank L. Littleton, T. C. Grooms, and Lamb, Beasley, Douthitt & Crawford, for appellant. Miller, Shirley, Miller & Thompson, Silas A. Hays, and John O. Piety, for appellee.

MYERS, J.

The able counsel for appellants have presented a brief upon petition for a rehearing, in which their position upon the “look and listen” rule is much more clearly presented than in their original brief; their contention being that by the original opinion in the case the rule of look and listen is abrogated, and if that can be reasonably said to be its construction or effect their position is well taken, though the court had no idea of what kind, or no suspicion of that construction or effect, because we recognize the rule in all its established force, and had no idea of abandoning it, or limiting it, and, if that construction is permissible, it is because the court misapprehended the situation and the force of the conclusions as stated.

We set out in the original opinion the fourth, fifth, and sixth instructions, which at that time and from re-examination we are unable to see as abrogating the “look and listen” rule.

[1] The specific objection is that they do not require attentive looking and listening, which as a matter of law is required, and that the term “ordinary care” is not broad enough to require looking and listening attentively, and that the jury should have been instructed that a traveler in crossing a railroad track is bound to anticipate danger and to look and listen attentively.

Appellee was not an ordinary traveler; he was a workman engaged in the performance of the duties then in hand at that place, and, while that could not excuse him from looking and listening, yet the character of his duties, and the attention they required, are not to be lost sight of.

The same degree of caution is not required of one whose duties on or about a railroad track require his crossing as in case of one who is discharging no duty, and is purely a traveler. The attention of the former is necessarily drawn to his work and duties, while the latter owes no duty arising from employment, and simply exercises an independent right of crossing, accompanied by the legal requirement upon him, but unaccompanied by any other consideration to guard his own safety. The rule does not apply in all its strictness to the former class of persons as to the latter. Cleveland, etc., Co. v. Morrey (1909) 172 Ind. 513, 88 N. E. 932;Pittsburgh, etc., Co. v. Lightheiser (1907) 168 Ind. 438, 78 N. E. 1033;Chicago, etc., Co. v. Vandenberg (1904) 164 Ind. 470, 480, 73 N. E. 990;Pittsburgh, etc., Co. v. Seivers, 162 Ind. 234, 243, 67 N. E. 680, 70 N. E. 133;Baltimore, etc., Co. v. Peterson, 156 Ind. 364, 59 N. E. 1044.

Appellee was not the servant of appellant charged with assumption of the risk, but the watchhouse, which was being placed, was for the joint use of appellant and another parallel road, the watchman who used it watched all the tracks at that street crossing, some 16 or 17, and, in its being placed, we must assume that appellee was where he had a right to be, and was where he was by invitation or permission of appellant, and entitled at least to the protection which ringing a bell or giving other signals would furnish, and the duty to exercise ordinary care was required of each.

If the fourth, fifth, and sixth instructions absolve appellee from the duty of looking and listening, our former opinion is erroneous, but we do not so understand them or that they relax the rule in the least.

[2] The only qualification of it that they make is that looking and listening is not required as a matter of law at any particular place, or in any particular direction, and that is settled by the former appeal. The case of Pittsburgh Co. v. Seivers, supra, has some features common to this case, but with this difference that it is shown that Gaby did not look at all, while here it appears that appellee did look.

[3] True, he was not at work upon the tracks, and it was his duty to look and listen, but he was in a somewhat different situation from an ordinary traveler at crossing in that his work occasioned him to cross and it was both his right and his duty to do so, and the question, as we conceive it to be, is, Did he use that care and make that use of his senses of sight and hearing proportionate to the danger to be avoided, and the consequences which might result from that neglect, which an ordinarily prudent man under the circumstances should use? If so, that after all is the law's interpretation of ordinary care. Republican, etc., Co. v. Ohler (1903) 161 Ind. 393, 401, 68 N. E. 901;Louisville, etc., Co. v. Schmidt, 147 Ind. 638, 46 N. E. 344;Lake Erie, etc., Co. v. Stick, 143 Ind. 449, 41 N. E. 365;Cincinnati, etc., Co. v. Duncan, 143 Ind. 524, 528, 42 N. E. 37;Smith v. Wabash Co., 141 Ind. 92, 99, 40 N. E. 270; Lake Shore Co. v. McIntosh, 140 Ind. 291, 270, 38 N. E. 476; Penna. Co. v. Horton, 132 Ind. 189, 193, 31 N. E. 45;Cleveland, etc., Co. v. Harrington, 131 Ind. 426, 433, 30 N. E. 37;Stewart v. Penna. Co., 130 Ind. 242, 29 N. E. 916;Ohio, etc., Co. v. Hill, 117 Ind. 56, 60, 18 N. E. 461;Toledo, etc., Co. v. Goddard, 25 Ind. 185, 197;Aurelius v. Lake Erie, etc., Co., 19 Ind. App. 584, 591, 49 N. E. 857.

In Malott, receiver, v. Hawkins (1902) 159 Ind. 127, 134, 63 N. E. 308, 310, it is said: “In cases of this character a trial court should not, in instructing the jury upon the duty of the person injured or killed, stop with the generality that such person was required to use ordinary care for his own safety, but it should instruct the jury as to some at least of the duties of a person about to cross a railway track upon a highway.” That, as we understand it, was done by the court in the fourth, fifth, and sixth instructions.

In that case, too, following Cleveland, etc., Co. v. Harrington, supra, and Chicago, etc., Co. v. Thomas, 155 Ind. 634, 58 N. E. 1040, it was affirmed that “it is ordinarily not possible, however, to affirm, as a matter of law, the precise number of feet from the crossing a traveler must look and listen, the underlying test being, did the traveler exercise ordinary care in view of the danger in selecting the place?” and that is the precise question here urged, that is, that appellee did not select the right place to look, and that question was also determined on the former appeal.

[4] If appellant had desired an instruction upon the subject of the law's presumption as to one's hearing, and seeing what ought to be seen and heard, or what he is in a position to see or hear, and its effect in an individual case, or as to specific requirements as to looking and listening, it should have tendered an instruction on the point. The nearest approach to it is by the sixteenth instruction, which in effect is no broader on these points than those given, and is incorrect upon other grounds.

Upon the question of hearing, it appears that on the second track east of the one upon which appellant was injured a freight train was traveling in the direction from which the train which injured plain...