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

• Decision Date: 04 June 1909
• Docket Number: No. 6,363.,6,363.
• Citation: 88 N.E. 623,44 Ind.App. 73
• Court: Indiana Appellate Court
• Parties: CLEVELAND, C., C. & ST. L. RY. CO. v. HOUGHLAND.

44 Ind.App. 73

88 N.E. 623

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

v.HOUGHLAND.

No. 6,363.

Appellate Court of Indiana, Division No. 1.

June 4, 1909.

On rehearing. Original opinion modified, and petition overruled.

For former opinion, see 85 N. E. 369.

HADLEY, C. J.

The court did, as pointed out by appellee in his brief in support of this petition, give instructions which are unexceptional from the standpoint of the appellant. A careful review of the case does not result in a different conclusion. The law, as it relates to the standard of care required from a traveler along a street, who crosses a railroad track, is well settled and often declared. The duty to look and listen is one which in the exercise of ordinary care cannot be evaded. There is no absolute duty on the part of the traveler to stop, but he must exercise ordinary care commensurate with the known danger. This case is distinguished from the case of Pittsburg, etc., R. Co. v. German Ins. Co. (Ind. App.) 87 N. E. 995, and other cases cited by appellee on his petition for rehearing, in that in this case it appears that decedent's son, who was riding with him, heard the whistle of the approaching train, and it must be presumed from the evidence that appellee's decedent also knew that a train was approaching. He did not know where it was or at what speed it was running. Under ordinary conditions he could see up the track for at least a quarter of a mile when he was within 30 feet of the west rail of the same. That he could not see more than from 50 to 100 feet, on the morning of the accident, it is plain, was on account of the fog; but this fog was as apparent to him as to the person running the train. With his knowledge that a train was approaching and his knowledge that on account of a fog he could not see for a greater distance than 100 feet, it was his duty to inform himself of his safety, and not to drive blindly into a place of known danger. As is said in Evansville, etc., R. Co. v. Clements, 32 Ind. App. 659, 70 N. E. 554: “The railroad track on the level with the highway is itself a warning of danger. Obstructions to the view admonish the traveler of the peril to which he is exposed. Caution must always be exercised commensurate with the known danger. The failure of the engineer to sound the whistle or ring the bell does not relieve the person approaching the highway from the use of care and ordinary prudence for his safety. What is ordinary care in one case would not be...