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

• Decision Date: 08 April 1910
• Docket Number: No. 6,597.,6,597.
• Citation: 91 N.E. 565
• Court: Indiana Appellate Court
• Parties: CLEVELAND, C., C. & ST. L. RY. CO. v. STARKS.

91 N.E. 565

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

v.STARKS.

No. 6,597.

Appellate Court of Indiana.

April 8, 1910.

On petition for rehearing. Petition overruled.

For former opinion, see 89 N. E. 602.

ROBY, J.

It is said in the brief filed in support of this petition that “we do not mean to assert that, in order to establish civil liability for willful injury, it is necessary to prove a fixed or malicious design to kill or maim; such has never been the law in this jurisdiction.” This statement simplifies the issue and makes it clear that the affirmance of this judgment does not “brand the engineer with homicide.” If the engineer after discovering the perilous situation of the decedent at or near the crossing failed to exercise reasonable care to avoid running over him, and in consequence thereof the engine did run over him, it was for the jury to say whether his acts were of so reckless a character as to amount to willfulness. Pittsburg, etc., R. Co. v. Ferrell, 39 Ind. App. 515, 541, 78 N. E. 988, 80 N. E. 425; Thompson, Negligence, vol. 2, § 1598.

It is argued that there is no evidence to sustain the finding. The question is not, therefore, one to be determined by reference to law books, but by reference to the record; nor is it to be settled with that free hand which a circuit judge holds in passing upon questions of fact, for “In order to overthrow a judgment for insufficiency of evidence the burden is upon appellant to establish that upon the consideration of all the evidence most favorable to plaintiff, with all the legitimate and reasonable inferences that the jury might deduce therefrom, is of such a character as to present a question of law, and not one merely of fact.” Chicago, etc., R. Co. v. Vandenburg, 164 Ind. 471, 73 N. E. 990.

The engineer testified that when he was 500 feet distant from the crossing he saw decedent's vehicle approaching the crossing; that its side curtains were closed, and that he did not sound his whistle or slacken the speed of his train until it was too late to avert the collision. These facts are undisputed. It must also be taken to be true, for there is evidence to that effect, that he sounded a danger signal only as the engine struck the vehicle. That he was running rapidly, and that the statutory signals for highway crossings had not been given. There were nine highway crossings in the town of Batesville and the utmost claimed by the engineer is that he gave one signal for them all. The statement that “he had given the proper signals” is not true.

It was for the jury to say from the evidence whether the situation and appearance of the decedent under all the circumstances, among which is to be included the absence of any warning, was such as that the engineer ought in reason to have anticipated that the traveler would, without warning, be unlikely to avoid the train. The verdict carries an affirmative finding. The evidence of the engineer was that the vehicle was, when he first saw it, 25 feet away, but he also testifies as follows: “I supposed a man certainly ought to know enough to hear me whistle a crossing and the bell and he would stop, but I see the old horse was coming along like...