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

• Citation: 98 N.E. 123,50 Ind.App. 147
• Decision Date: 05 April 1912
• Docket Number: No. 7,575.,7,575.
• Parties: CLEVELAND, C., C. & ST. L. RY. CO. v. FEDERLE.
• Court: Court of Appeals of Indiana

50 Ind.App. 147

98 N.E. 123

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

v.FEDERLE.

No. 7,575.

Appellate Court of Indiana, Division No. 1.

April 5, 1912.

Appeal from Circuit Court, Ripley County; F. M. Thompson, Judge.

Action by William Federle, guardian, against the Cleveland, Cincinnati, Chicago & St. Louis Railroad Company. From judgment for plaintiff, defendant appeals. Affirmed.L. J. Hackney, F. L. Littleton, J. O. Cravens, and T. S. Cravens, for appellant. Nicholas Cornet, Jno. B. Rebuck, and Rowland H. Jackson, for appellee.

FELT, C. J.

Appellee brought this action to recover damages for injuries alleged to have been sustained by his ward on a public highway crossed by appellant's road, and caused by its negligent construction of the approaches of said highway at said crossing. The case was tried by a jury which returned a verdict for appellee in the sum of $1,000 together with answers to interrogatories. From judgment in favor of appellee this appeal was granted. Appellant assigns error in the overruling of: (1) The demurrer to the amended second paragraph of supplemental complaint; (2) the motion for directed verdict at the close of the evidence; (3) appellant's motion for judgment on the answers to interrogatories notwithstanding the general verdict; (4) the motion for a new trial.

[1] Appellant's second alleged error presents no question as an independent assignment, but is properly included in the motion for a new trial. Chicago, etc., R. Co. v. Richards, 28 Ind. App. 46-59, 61 N. E. 18;Rhodius v. Johnson, 24 Ind. App. 401-403, 56 N. E. 942.

[2] In support of its first proposition appellant contends that appellee's complaint is defective as against demurrer in that it fails to show any causal connection between the negligence complained of and the injuries sustained by appellee's ward.

From the averments of the complaint it appears that on December 27, 1906, and for some time prior thereto, appellant was engaged in elevating its tracks and reconstructing its roadbed at a place where said tracks crossed a public highway; that on said date appellee's ward, Joseph Federle, while driving with a loaded wagon along said highway, approached said crossing from the north; that he stopped, looked, and listened for an approaching train, but neither saw nor heard any; that he drove upon the railroad track and then saw a train approaching him from the east at a high rate of speed; that because said crossing was only 9 feet wide instead of 30 feet, the width of the highway, he could not turn to either side, and on account of the rapidly approaching train he could not stop; that he was thus forced to continue on his way and go down the south approach to the crossing; that said south approach was constructed on a 40 per cent. grade and was built of loose, unpacked sand and gravel; that it was in a dangerous condition, and said dangerous condition was unknown to appellee's ward; that in going down said approach said ward was thrown from his wagon and so injured that he became of unsound mind. The complaint further charges appellant with the negligent construction of said crossing and approach, and alleges that “all of which happenings were occasioned solely by the carelessness and negligence of appellant,” and that “on account of said happenings” appellee's ward was injured.

It thus appears that said ward used due caution as he approached appellant's tracks; that he knew of no defects in the construction of the highway beyond the railroad; that when he drove upon said tracks and saw the approaching train, he did the natural and only possible thing, under the circumstances, when he drove down the south approach; that he had no time to inspect the same, but was forced to use it as he found it or be struck by the train; that he drove down the steep approach, was thrown from his wagon, and injured.

The form and character of the averments of the complaint relied upon to show that the alleged negligence of appellant, in constructing the crossing and the south approach thereto, caused the injury complained of, are not to be commended, yet, considering all the facts averred, we are forced to the conclusion that the fall and injury alleged were the proximate result of the negligent construction aforesaid. Vandalia Coal Co. v. Price, 97 N. E. 429-431; C., C., C. & St. L. Ry. Co. v. Stevens, 96 N. E. 493-494;Pa. Co. v. Sears, 136 Ind. 460-465, 34 N. E. 15, 36 N. E. 353.

[3] Appellant contends that its motion for judgment on the answers to the interrogatories notwithstanding the general verdict should have been sustained for the reason that the jury, in answer to interrogatory No. 21, found that it was dangerous for appellee's ward “to drive down the approach to the south track seated on a loose board lying across strips nailed lengthwise on the top of a farm wagon,” and, in answer to interrogatory No. 22, found that the danger was open and obvious to one driving down the approach to the south tracks so seated on the top of a farm wagon. But in answer to interrogatories 17, 18, and 20 the jury also found that appellee's ward had his horse under control; that travelers on the highway in question could not drive over the approach to the south track in safety by using ordinary care; and that the danger in driving over said approach was not open and obvious. It cannot be seriously contended that the position of appellee's ward on his wagon was a negligent or unsafe position for him to assume, nor that it gave him any better opportunities to observe the danger ahead than that which any other traveler possessed. It follows, then, that, so far as the jury's answers to the interrogatories are favorable to appellant, they are in conflict with other answers, and their effect is thereby nullified and rendered unavailing to overthrow the general verdict. Pittsburgh, etc., R. Co. v. Lightheiser, 168 Ind. 438, 448, 78 N. E. 1033; Richmond, etc., R. Co. v. Beverly, 43 Ind. App. 105, 110, 84 N. E. 558, 85 N. E. 721; Union Traction Co. v. Vandercook, 32 Ind. App. 621, 625, 69 N. E. 486.

[4] Even though appellee's ward knew there was danger in driving over the crossing, it did not necessarily follow that injury would result, and under such circumstances, and particularly in view of the fact that said ward's position on appellant's track was one of positive danger on account of the approaching train, he was justified in proceeding if he used such care and caution as “a person of ordinary prudence, in like place, would deem sufficient successfully to guard against the threatening danger.” Chicago, etc., R. Co. v. Leachman, 161 Ind. 512-516, 69 N. E. 253;Town of Gosport v. Evans, 112 Ind. 133, 138, 13 N. E. 256, 2 Am. St. Rep. 164.

As against the interrogatories, the general verdict finds in appellee's favor every fact provable under the issues. This includes the finding that his ward exercised care commensurate with the apparent danger of the situation and acted in a cautious and prudent manner.

In the Leachman Case, supra, on page 516 of 161 Ind., on page 255 of 69 N. E., it is said: “There is no question of assumed risk in this case, however well appellee knew of the defective condition of the crossing. Appellant, in the construction of its railroad, having intersected an established highway, it becomes its imperative statutory duty to restore the highway, thus intersected, to its former state, or in a sufficient manner not unnecessarily to impair its usefulness, and in such manner as to afford security for life and property. Section 5153, Burns 1901, cl. 5; Chicago, etc., R. Co. v. State ex rel., 158 Ind. 191, 63 N. E. 224, and cases cited.

Whatever danger or risk, obvious or otherwise, resulted from the failure of appellant to perform its specific statutory duty to keep the crossing safe and in good condition for travel was assumed by appellant, who wrongfully created it, and not by appellee. The appellee is answerable only for his conduct in dealing with the defective conditions as he found them. As relates to him the question is: (1) Was it negligence to undertake, at all, to drive his team and load over the crossing in its known condition; and (2) if he might reasonably undertake it, in his effort to do so, did he neglect the observance of any care or precaution required by ordinary prudence under the circumstances? If he might rightfully undertake to cross, and he used such care as an ordinarily careful and cautious person...