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

• Decision Date: 08 January 1902
• Citation: 28 Ind.App. 163,62 N.E. 455
• Parties: CLEVELAND, C., C. & ST. L. RY. CO. v. HEINE.
• Court: Indiana Appellate Court

28 Ind.App. 163

62 N.E. 455

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

v.HEINE.

Appellate Court of Indiana, Division No. 1.

Jan. 8, 1902.

Appeal from circuit court, Boone county; B. S. Higgins, Judge.

Action by Hubert E. Heine, administrator, against the Cleveland, Cincinnati, Chicago & St. Louis Railway Company. From a judgment in favor of the plaintiff, the defendant appeals. Reversed.

John T. Dye and L. J. Hackney, for appellant. Jameson & Joss, A. J. Shelby, J. G. Adams, and Esterbrook & Hines, for appellee.

ROBINSON, P. J.

Suit by appellee for damages for the death of his decedent. Amended complaint in 10 paragraphs, to each of which a demurrer was overruled, except the fourth and eighth paragraphs, to which demurrers were sustained. Verdict in appellee's favor; also answers to interrogatories. Appellant's motion for judgment non obstante overruled, and judgment on the verdict.

The following facts were found by the jury in answer to interrogatories: Appellant had three tracks at the Newman street crossing. Decedent approached the tracks from the south, and went upon the right of way near the center of the street, and over the most southerly track, riding a bicycle. There were cars standing upon the most southerly track, so that a person approaching from the south could not see a locomotive approaching on the main tracks from either direction, and on the west side these cars extended two-thirds of the way over the sidewalk. The distance between the north rail of the most southerly track and the south rail of the most northerly track is 26.2 feet; from the north rail of the most southerly and the south rail of the track next north of it is 12.9 feet; from the center of the most southerly track to the center of the track next north is 17.6 feet; and from the center of the middle track to the center of the most northerly track, 13.3 feet. The three tracks were parallel, and the most northerly track and the one south of it extended from Newman street westward, 2,290 feet or more. Decedent was killed at 6:20 p. m. May 26th by being struck by a locomotive from the west on the most northerly track. The locomotive was running backwards. No bell was ringing, and no watchman was on the rear end. There were city ordinances in force prohibiting a greater speed than four miles an hour, also the running backward of a locomotive without a watchman on the rear end, and also running a locomotive in the city without ringing the bell while the same was moving. Appellant had established and operated for more than a year previously a system of warning bells at this street crossing to warn travelers of approaching trains, but during that entire day they were out of order and not ringing, and did not ring as the locomotive approached the crossing. Decedent dismounted from his bicycle before he reached the place where he was struck, and at the time he was killed was in full possession of all his faculties, and as he approached Newman street he used his senses of sight and hearing, and acted as an ordinarily prudent man would under the circumstances and conditions surrounding him at the time. Before he went upon the tracks at Newman street he used his senses of sight and hearing, and did not see or hear anything that warned him of the approaching locomotive. His view along the main track was obstructed by the cars on the south track until he had crossed the track. He knew of the system of warning bells, and relied on the fact that they were not ringing, in attempting to cross the track. Decedent, while exercising his senses of sight and hearing as an ordinarily prudent man would under the circumstances in which he was placed, was induced to enter upon the tracks by reason of the warning bells not sounding. “Was said Trayford, while acting upon such inducement, suddenly and unexpectedly confronted by an approaching locomotive of the defendant running backward at a speed of thirty miles an hour, and did said Trayford, when thus confronted by what he believed to be sudden and impending peril, use his sense of sight and hearing, and act as an ordinarily prudent man would have done under the circumstances surrounding him? Ans. Sense and hearing, yes. Speed of engine not so fast.” “On the 26th day of May, 1897, at the time of the collision of defendant's locomotive with Trayford, could not one crossing the tracks of defendant at Newman street from...