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

• Decision Date: 06 November 1908
• Docket Number: No. 21,239.,21,239.
• Citation: 171 Ind. 589,85 N.E. 999
• Court: Indiana Supreme Court
• Parties: CLEVELAND, C., C. & ST. L. RY. CO. v. LYNN.

171 Ind. 589

85 N.E. 999

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

v.LYNN.

No. 21,239.

Supreme Court of Indiana.

Nov. 6, 1908.

Appeal from Superior Court, Vigo County; S. C. Stimson, Judge.

Action by Robert R. Lynn against the Cleveland, Cincinnati, Chicago & St. Louis Railway Company. From a judgment of the Appellate Court (83 N. E. 1135) affirming a judgment for plaintiff, defendant appeals, under Burns' Ann. St. 1901, § 1337j, subd. 3. Reversed and new trial ordered.Lamb, Beasley & Lawyer and L. J. Hackney, for appellant. John O. Piety, for appellee.

GILLETT, C. J.

Appellee, who was the plaintiff below, sued appellant, charging it with negligence in the operation of one of its trains, whereby appellee was injured in attempting to cross appellant's track, at a point where it intersected a street in the city of Terre Haute. The second and third paragraphs of complaint, on which the cause was tried, seek to predicate negligence on running said train over said crossing without ringing the bell or whistling, and in violation of an ordinance limiting the speed of locomotives and cars to 5 miles per hour. The objection urged against these paragraphs is that they affirmatively show that appellee was guilty of negligence contributing to his injury. It appears from said paragraphs that appellee, who was an employé of another railroad company, had been engaged, on the day in question, in moving a watchhouse, which was located on the south side of said street, to the north side thereof; that the watchhouse was about 9 feet long and 6 feet wide, and that it is set lengthwise with the street, and about 8 or 9 feet west of appellant's tracks. It appears that appellant's line of railroad extended through said city from the north in a southwesterly direction, and that at said street the company had two tracks, which were straight for a considerable distance to the north, that another railroad company had 17 tracks, including main tracks and switches, at said street, immediately east of appellant's tracks, and that south of said street all of said tracks curved to the south and east. One of said paragraphs charges, or attempts to charge, an obstruction of the view of appellant's tracks to the south, within 250 feet of said street, by reason of cars, making it very dangerous to cross said tracks from the west without looking south. It is charged that appellant's said tracks crossed the street at such an angle that the watchhouse obstructed the view of said tracks to the north, from the north side of said street “about 20 feet west of the west tracks of the defendant, continuously up to said west track, until a point about 8 or 9 feet west of said track was reached.” It is also alleged that, after locating said watchhouse, appellee started to cross appellant's tracks, from a point on the north side of said street about 20 feet from appellant's west track, and that when he came to the southeast corner of said watchhouse, he stopped and looked to the northeast up appellant's tracks for 250 feet for approaching trains, and also listened, but did not see or hear a train on said west track; that he saw and heard a train on appellant's east track going north, to the north of said street, “whereupon plaintiff, looking to the south and east to see if any trains were approaching the crossing from that direction, took two or three steps towards defendant's tracks, and just as he got one of his feet over the west rail of the defendant's west track, the defendant” negligently ran its “locomotive and train of cars up to and over said crossing, at a high rate of speed, to wit, 25 or 30 miles per hour, a rate of speed greatly in excess of the rate of speed provided in said ordinance,” without ringing the bell or sounding the whistle, and struck the plaintiff, etc. Further facts are pleaded to show that, if signals had been given, appellee would have been warned, and that, if appellant had observed the speed ordinance, he would have been able to cross said track without injury.

Assuming that the train came from the north, we do not think that it can be said, as a matter of law, that either paragraph of the complaint shows that there was contributory negligence. The rate of speed is not definitely alleged, but is laid under a videlicet, the substance of the allegation being that the train was negligently run at a speed in excess of the limit provided for in the ordinance. Indianapolis Street R. Co. v. Marschke, 166 Ind. 490, 496, 77 N. E. 945. But assuming that the train approached said crossing at the rate of 30 miles per hour, it would traverse the distance of 250 feet in less than six seconds, and, in view of the time required to look and listen for trains from the south, and to walk from the watchhouse to the track, we do not think that we can say that the train was within the space of 250 feet when appellee looked in that direction, nor that he loitered in his effort to cross. If necessary, we would have to assume that, at the point of looking, the watchhouse constituted an obstruction to the view beyond that distance. We are also of opinion that it cannot be said, as a matter of law, that appellee was guilty of negligence in failing to look to the north after he had reached a point where he had an unobstructed view in that direction. As the latter point seems to be the important one in the case, at least upon the complaint, we shall consider it more at length, and in doing so we may say preliminarily that, since the burden was on appellant in respect to contributory negligence, by virtue of the statute, the inferences upon that subject which the complaint admits of must be in favor of appellee.

In 3 Elliott on Railroads (2d Ed.) § 1179a, the authors say: “Even in Indiana, where the rule as to looking and listening is well established, it is held that particular circumstances requiring the traveler to direct his attention temporarily elsewhere, or misleading him, may make the case one for the jury, and that the rule is not inflexible and unvarying as to time and place, so as to always, and under all circumstances, require the case to be taken from the jury merely because the traveler might have seen the train if he had looked in the right direction, at a particular instant, from a particular place.” It should also be suggested that the cases in this state recognize the doctrine that it is the right of the traveler, within reasonable limits, to assume that the railway company will obey the law, and while this does not relieve him from the exercise of due care, yet it may be a feature in determining whether due care was exercised. Pittsburgh, etc., R. Co. v. Yundt, 78 Ind. 373, 41 Am. Rep. 580;Indianapolis, etc., R. Co. v. McLin, 82 Ind. 435;Pittsburgh, etc., R. Co. v. Martin, 82 Ind. 476;Chicago, etc., R. Co. v. Boggs, 101 Ind. 522, 51 Am. Rep. 761;Chicago, etc., R. Co. v. Hedges, 105 Ind. 398, 7 N. E. 801;Cleveland, etc., R. Co. v. Harrington, 131 Ind. 426, 30 N. E. 37; Baltimore, etc., R. Co. v. Conoyer, 149 Ind. 524, 48 N. E. 352, 49 N. E. 452. As was said in Woehrle v. Minnesota Transfer Co., 82 Minn. 165, 84 N. W. 791, 52 L. R. A. 348: “The rule that it is the duty of a traveler on the highway, about to go upon a railway crossing, to look and listen, to the extent of his opportunity, for an approaching train is not always an absolute one. While he cannot omit to exercise proper diligence in so looking and listening in reliance upon the railway company doing its duty as to giving signals, yet there are circumstances where, in regulating his own conduct, he may have some regard to the presumption that the company will do its duty.”

In St. Louis, etc., R. Co. v. Dillard, 78 Ark. 520, 94 S. W. 617, which involved a failure to give signals, the court said: “Now in this case we are asked to say, as a matter of law, that though the plaintiff brought his team almost to a standstill in 25 or 30 feet of the track, and carefully looked and listened both ways up and down the track, and no train was in sight for a distance of 200 yards to the west, and he started across, meanwhile listening for trains and looking toward the east, where he specially apprehended danger, he was guilty of negligence in failing to look again toward the west while going that distance toward the track. To so hold would be, we think, to make the traveler the insurer of his own safety, and deprive him entirely of the right of recovery for injury caused by the negligence of the railroad company, unless he kept his eyes turned every moment, under all circumstances, toward the direction from which the train came.”

In Rodrian v. New York, etc., R. Co., 125 N. Y. 526, 26 N. E. 741, the New York Court of Appeals said: “If, in case of an accident at a crossing, it appears that the person injured did look for an approaching train, it would not necessarily follow, as a rule of law, that he was remediless because he did not look at the precise place and time when and where looking would have been of the most advantage. Many circumstances might be shown which could properly be considered by the jury in determining whether he exercised due and reasonable care in making his observation. The presence of other and imminent dangers, the raising of gates erected by the company to guard the highway, giving assurance that the crossing was safe, these, and similar circumstances appearing, they may be considered in determining whether the person injured, who did in fact look and listen before attempting to cross the track, fairly discharged the duty imposed upon him, although it should appear that, if he had looked at another instant of time, or had looked last in the direction from which the train was approaching, he would have seen it.” See, also, Continental Improvement Co. v. Stead, 95 U. S. 161, 24 L. Ed. 403;Grand Trunk R. Co. v. Ives, 144 U. S. 408, 12 Sup. Ct. 679, 36 L. Ed. 485;McGhee v. White, 66 Fed. 502, 13 C. C. A. 608;French v. Taunton Branch Railroad, 116 Mass....