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

• Decision Date: 06 November 1914
• Docket Number: No. 7908.,7908.
• Citation: 106 N.E. 646,58 Ind.App. 341
• Court: Indiana Appellate Court
• Parties: CLEVELAND, C., C. & ST. L. RY. CO. v. STARKS.

58 Ind.App. 341

106 N.E. 646

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

v.STARKS.

No. 7908.

Appellate Court of Indiana, Division No. 2.

Nov. 6, 1914.

On rehearing. Former decision withdrawn, and judgment below affirmed.

For former opinion, see 102 N. E. 279.

CALDWELL, J.

This is the second appeal in this case. In an appeal taken from a former judgment rendered in favor of appellee, the judgment was reversed on an erroneous instruction, and a new trial ordered. Cleveland, etc., Co. v. Starks, 174 Ind. 345, 92 N. E. 54. On the second trial, appellee again recovered judgment, from which this appeal is taken. The cause was submitted to the jury on issues of facts formed by a general denial to the second, third, and fourth paragraphs of complaint, charging appellant with negligently causing the death of appellee's intestate, and a fifth paragraph charging appellant with willfully causing the death of said intestate. Prior to the first appeal, the court overruled demurrers addressed to each paragraph of the complaint. Errors are separately assigned on the overruling of appellant's demurrers to the fourth and fifth paragraphs and on the overruling of appellant's motion for a new trial.

Briefly stated, the facts are in part as follows: On the 14th day of February, 1906, Francis Starks, appellee's intestate, seated in a buggy drawn by one horse, drove south along Mulberry street in the town of Bates ville, Ripley county, Ind., and entered on appellant's track where it crosses said street at grade, and was thereupon killed by a passenger train from the east, which collided with said buggy. Said intestate left surviving him certain minor children and also his widow, the appellee, who, as administratrix, brings this suit. The further facts will appear in the course of the opinion.

The second paragraph of complaint charges that the death of the decedent was negligently caused by appellant's failure to give the statutory signals or other warning of the train's approach to the crossing. The third paragraph contains the same charge of negligence as the second paragraph, and, in addition, a general charge of negligence in operating the train resulting in decedent's death. On the first appeal the Supreme Court expressly held the second and third paragraphs sufficient. The said fourth paragraph also was held sufficient, as against all objections urged against it. Generally stated, it is now argued that said paragraph does not include a sufficient charge of negligence. By said paragraph, facts descriptive of the nature of said crossing are specifically averred, to the effect that buildings, trees, shrubbery, etc., a cut in the right of way, and a curved track obstructed both the view of and the noise made by a train approaching from the east.

[1] It is alleged that Batesville contained about 2,500 inhabitants, and that said Mulberry street crossing was situated in a very populous neighborhood, and that said crossing was being used continuously and extensively by persons both on foot and in vehicles. Facts are specifically alleged to the effect that said decedent was not guilty of contributory negligence in approaching and entering on said crossing. It is not alleged that decedent was unacquainted with said crossing, or that the statutory crossing signals were omitted. The negligence charged is to the effect that appellant, with full knowledge of the obstructed nature of said crossing, and of the effect of said obstructions, and of the other facts pleaded, carelessly and negligently operated its train, running late, towards and over said crossing, and against said decedent, riding in a buggy, at a speed exceeding 60 miles per hour, and thereby killed decedent. In our judgment, considering the rate of speed, in connection with the nature of the crossing and appellant's alleged knowledge of the facts, said paragraph states a cause of action. Without further discussion, we cite the following: Chicago, etc., Co. v. Spilker, 134 Ind. 380, 33 N. E. 280, 34 N. E. 218;Terre Haute, etc., Co. v. Clark, 73 Ind. 168;Louisville, etc., Co. v. Stommel, 126 Ind. 35, 25 N. E. 863;Brooks v. Muncie Co., 176 Ind. 298, 306, 95 N. E. 1006; 33 Cyc. 971, 972; Lake Shore, etc., Co. v. Barnes, 3 L. R. A. (N. S.) 778 (Ed. note).

[2] The theory of the fifth paragraph of complaint is that the injury was willfully inflicted. It is argued that this paragraph is insufficient by reason of the absence of an averment that appellant or its servants intended to cause the injury sustained by decedent, or intended to collide with him. It is averred in said paragraph that, when appellant's train was 400 feet east of the crossing, the engineer in charge thereof saw said decedent in a buggy drawn by one horse, approaching and entering on said crossing; that said engineer did nothing to warn decedent of the impending danger, and did not in any manner attempt to stop or check the speed of the train when he saw decedent driving to and on said crossing, and that said engineer, seeing and fully comprehending decedent's perilous position, purposely, willfully and without regard to the rights of said decedent caused said locomotive, moving at a speed exceeding 60 miles per hour, to run upon and strike the buggy in which decedent was then riding, throwing him to the ground with great violence and killing him.

The necessary effect of running such a ponderous instrumentality as a train of cars, moving at the rate of 60 miles per hour, into a buggy on a crossing is the death or serious injury of the occupants of such buggy. It is therefore a necessary inference that if the engineer purposely and willfully caused such train, moving as aforesaid, to collide with said buggy, having full knowledge that said decedent was seated therein, he intended the death or serious injury of decedent. Under the more recent decisions, the paragraph is therefore sufficient. Domestic Block Coal Co. v. De Armey, 179 Ind. 592, 100 N. E. 675, 102 N. E. 99;Kahle v. Crown Oil Co. (Sup.) 100 N. E. 681;Vandalia R. R. Co. v. Clem, 49 Ind. App. 94, 96 N. E. 789.

[3] It is argued that, on the first appeal of this case, the Supreme Court held said paragraph of complaint sufficient. In that appeal, error was assigned on the overruling of a demurrer to said paragraph. On that subject the court said:

“The fifth paragraph of complaint purports to allege that decedent's death was intentionally caused by appellant's engineer. No objection to the sufficiency of this paragraph has been pointed out in appellant's brief, and the alleged error in overruling its demurrer thereto must be regarded as waived.” Cleveland, etc., Co. v. Starks, 174 Ind. 345, 92 N. E. 54.

It thus appears that, on such appeal, the court did not determine the sufficiency of such paragraph, except as effect was given to such waiver. However, the case having been reversed, and a new trial ordered and had, and the question of the sufficiency of said paragraph not having been resubmitted to the trial court in any manner, should it not be held that such waiver extends to this appeal? See the following: Stevens v. Templeton, 174 Ind. 129, 91 N. E. 563;Wine v. Woods, 158 Ind. 388, 63 N. E. 759;Davis v. Krug, 95 Ind. 1;Pittsburg, etc., Co. v. Lightheiser, 168 Ind. 438, 467, 78 N. E. 1033;Adams v. Board, 165 Ind. 530, 76 N. E. 113;Consumers Co. v. Eyer, 160 Ind. 424, 66 N. E. 994.

[4] Complaint is made of the court's refusal to give certain instructions requested by appellant, among them the sixth and fourteenth. The sixth is an abstract instruction to the effect that if a traveler on a highway approaching a railroad crossing, seated in a buggy, obstructs his view by side curtains and a storm front on the buggy, so that he does not see the approaching train in time to avoid injury, and that, if he had not so obstructed his view, he could have seen such train in time to have avoided injury, such traveler, as a matter of law, is guilty of negligence contributing to his said injury. Practically the only distinction between the fourteenth instruction requested and refused and the sixth instruction is that the former is concretely applied to decedent, and embraces also the element of obstruction to the sound of the approaching train resulting from such front and side curtains. The substance of these instructions so refused is included in the thirteenth instruction given at appellant's request, which instruction, in the judgment of this court, was more favorable to appellant than it was entitled to. Under such instruction, a conclusion of contributory negligence, as matter of law, would flow from the mere fact of such inclosure and its assumed effects, regardless of the nature of the crossing, the manner in which the train was operated or the degree of care exercised by the traveler, under investigation. It can scarcely be said that the mere act of so inclosing himself is of itself either wrongful, unlawful, or negligent on the part of such traveler. If he so incloses himself, he must of course exercise care commensurate with the situation in which he finds himself and created in part by him. If this he does, he is not guilty of contributory negligence, either as matter of fact or matter of law. In such a situation, as in other cases, if the evidence bearing on the issue of contributory negligence is of such a nature, by reason of contradictions or otherwise, as that it is reasonably susceptible of either of two opposite inferences, the one in harmony with the exercise of due care, and the other opposed thereto, the question is for the jury.

The case of Cleveland, etc., Co. v. Pace, 179 Ind. 415, 101 N. E. 479, is not an authority for such an instruction. The Supreme Court there does not hold, as a matter of law, that Pace, was guilty of contributory negligence by reason of inclosing himself in a vehicle, with the resulting effect as found by the jury, but rather that his failure to exercise care, as called for by the situation for which he was in...