Cleveland, C., C. & St. L. Ry. Co. v. Nichols
| Decision Date | 16 October 1912 |
| Docket Number | No. 7,726.,7,726. |
| Citation | 99 N.E. 497,52 Ind.App. 349 |
| Court | Indiana Appellate Court |
| Parties | CLEVELAND, C., C. & ST. L. RY. CO. v. NICHOLS. |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Marion County; Chas. Remster, Judge.
Action by Baxter G. Nichols, administrator, against the Cleveland, Cincinnati, Chicago & St. Louis Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.
Leonard J. Hackney, Frank. L. Littleton, John J. Kelly, and John W. Kern, all of Indianapolis, for appellant. M. M. Bachelder, of Indianapolis, for appellee.
Suit by appellee to recover damages for the death of his decedent, John A. Shewmon, alleged to have been caused by appellant's negligence. Trial by a jury resulted in a verdict for appellee in the sum of $2,500. Appellant's motion for judgment on the special findings and for a new trial were overruled, and this appeal taken from the judgment on the general verdict.
[1] The first error assigned and relied upon by appellant is that the trial court erred in overruling the demurrer to appellee's complaint. The complaint sets forth much detail, and is lengthy, but, in substance, charges that about 3 o'clock on the afternoon of September 28, 1908, appellee's decedent, while driving a one-horse wagon along Keystone avenue in the city of Indianapolis, was struck and killed by one of appellant's trains at a point where appellant's railroad crosses said Keystone avenue; that, as said decedent approached said crossing, he had an unobstructed view of appellant's tracks for half a mile to the east of Keystone avenue; that he looked to the east when 50 feet from appellant's right of way, and saw no train approaching him from that direction; that, when 50 feet south of said crossing, he looked to the west to ascertain whether any cars or locomotives were approaching from that direction; that his view of appellant's tracks to the west from that point and until he got within five feet of said crossing was obstructed by freight cars standing on one of appellant's tracks; that decedent was obliged to and did keep close watch to the west, to determine whether any cars were approaching him from behind said obstructions, until he was upon appellant's right of way, when he ascertained that none were coming from that direction; that he relied upon his previous view to the east and the fact that appellant would not violate the laws of the state or the ordinances of said city in the operation of its trains within the city limits; that appellant maintained its Keystone avenue crossing in an unlawful and negligent manner, in this: that it was not planked, and the space between the rails was not filled up, and the rails protrude some six or eight inches above the level of the ground at said point of intersection, making it very dangerous and hard for one to cross over said tracks without going very slowly; that at the time decedent attempted to cross said Keystone avenue crossing the appellant negligently, carelessly, unlawfully, and wrongfully operated a passenger train upon its said right of way from the east in the corporate limits of said city at a rate of speed, to wit, 60 miles an hour; that decedent did not observe said train, and did not known the same was approaching until he was upon said crossing; that he used all diligence and care within his power to immediately get out of the way of said train and across said tracks; that, on account of the unlawful speed at which said train was running and the rough and unlawful condition of said crossing, it was impossible for him to do so; that appellant did not ring any bell or blow any whistle or attempt to stop or check the speed of said train, but negligently ran the same at the unlawful rate of speed, to wit, 60 miles an hour; that said train collided with decedent and killed him. The complaint then avers that certain ordinances of the city of Indianapolis were in force on the date of said accident, governing the establishment and maintenance of grade crossings, and requiring bells to be rung when running a locomotive in said city, and limiting the speed of trains within the city limits to four miles per hour, and alleges appellant's violation of the same. While some averments in appellee's complaint are by way of recital, and there is much detail, and some repetition, a fair interpretation of the facts well pleaded shows that a cause of action is stated, and the complaint is sufficient to withstand a demurrer.
[2] But appellant asserts that the facts alleged show that as a matter of law decedent was guilty of contributory negligence; that he was negligent in not keeping a proper lookout for trains from the east while he traveled the last 50 feet of the approach to the Keystone avenue crossing; and that, after he reached a point five feet from said crossing, he had an unobstructed view of appellant's tracks, both to the east and to the west, but did not at that time look to the east. Appellant further contends that this court will take judicial knowledge of the noise which is made by a train running at a speed of sixty miles an hour; that such noise must have been heard by decedent, and no reason is shown for his apparent failure to heed its warning; that the complaint also alleged a physically impossible state of facts in that a train, running at a speed of 60 miles an hour, would not travel half a mile in the time...
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