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

Decision Date13 May 1904
PartiesCLEVELAND, C., C. & ST. L. RY. CO. v. MILES.
CourtIndiana Supreme Court

OPINION TEXT STARTS HERE

Appeal from Superior Court, Marion County; Jas. M. Leathers, Judge.

Action by James H. Miles against the Cleveland, Cincinnati, Chicago & St. Louis Railway Company. Judgment for plaintiff and defendant appeals. Affirmed. Transferred from Appellate Court under section 1337u, Burns' Ann. St. 1901.

Elliott, Elliott & Littleton, for appellant Kealing & Hugg, for appellee.

DOWLING, J.

The infant son of the appellee was run over and killed April 10, 1901, at a street crossing in the city of Indianapolis, on the east track of the Indianapolis Union Railway Company, by a locomotive and car owned by the appellant, and then and there being run by it on said track. This action was brought by the father against both companies to recover damages for the injury to and death of his child. On the trial, upon a peremptory instruction by the court, the jury returned a verdict in favor of the Indianapolis Union Railway Company, and thereafter the cause proceeded against the appellant alone.

The complaint was in two paragraphs, and the first alleged that the negligence of the appellant consisted in running its locomotive, drawing a caboose, over and along one of two parallel tracks nine feet distant from each other, and over and across their intersection with Morris street, one of the public streets of said city, at a reckless and dangerous rate of speed, to wit, 30 miles per hour, while a long train of freight cars was running in the opposite direction on the other track, completely shutting out of view said locomotive and car, and drowning the noise thereof; that the appellant failed to give to the decedent notice of the approach of said locomotive and car by ringing the bell or sounding the whistle on said locomotive, and that the watchman at said intersection, employed and kept there by the Indianapolis Union Railway Company, did not warn the decedent of the approach of the said locomotive and car, as it was his duty under his employment to do; that appellant's son, with other persons, was waiting on the sidewalk on Morris street, just west of the west track, to cross over said tracks to a point immediately east of the east track so soon as said train on the west track should move off of said crossing; that the said moving freight train on said west track, going south, prevented appellant's son from seeing the approaching locomotive and car coming north on the east track, and that the noise made by it prevented him from hearing the approach of said locomotive and car; that, as soon as the north end of the said freight train had moved far enough south to enable appellant's son to cross the west track, he started to do so, without notice or warning of the approach of the said locomotive and car on the east track, and without fault or carelessness on his part, when the appellant carelessly and negligently ran its said locomotive and car at a dangerous rate of speed, to wit, 30 miles per hour, and without any signal of its approach, against and upon appellant's son, wounding and injuring him so that in one hour he died. It was also alleged, in connection with the charge of negligence on the part of the appellant, that the said railroad crossing was in a thickly settled part of the city of Indianapolis, and was much used by travelers on foot and in vehicles. The second paragraph of the complaint was similar to the first, but contained the additional averment that the train which struck and killed the child was being run at a high rate of speed, to wit, 30 miles per hour, in violation of an ordinance of the city of Indianapolis of March 12, 1866, limiting the speed of trains within the city to four miles per hour. No question is made as to the other and merely formal averments of the complaint, and it is not necessary to set them out. A demurrer to each paragraph of the complaint for want of sufficient facts was overruled, the appellant filed its answer in denial, and the cause was submitted to the jury for trial. After all the evidence was given, written requests for instructions filed, and a part of the argument heard, the court, on motion of the appellee, and over the objection and exception of the appellant, permitted the appellee to amend each paragraph of his complaint by inserting these words: “That by reason of the death of said Harry Walden Miles, caused by the negligent acts of the defendant as aforesaid, he, the plaintiff, was deprived of the services of his said son from the time of his death, as aforesaid, to the time he would have arrived at the age of twenty-one years, which services the plaintiff alleges were, and would have been, of the value of ten thousand ($10,000) dollars to him.” The appellant then moved that the appellee be required to file his complaint as an amended complaint, which motion was overruled. Appellant next demurred to each paragraph of the complaint as amended. These demurrers were overruled. A verdict was returned for the appellee, and, over a motion by appellant for a new trial, judgment was rendered on the verdict. All these rulings of the court on the demurrers and motions are assigned for error.

Does the complaint contain a sufficient charge of actionable negligence on the part of the appellant? If so, was the child of the appellee guilty of contributory fault? It is well settled that, where one or more railroad tracks cross a public street of a city in a populous neighborhood, greater vigilance and care on the part of the company to avoid injuring persons using the street are required than at ordinary highway crossings in the country, or in sparsely settled and unfrequented places. In this, as in other cases, the degree of care to be exercised by the company must be commensurate with the dangers of the particular situation created by its use of the street. It may have the right to occupy the street with its tracks, and to use them for the purpose of moving its locomotives, cars, and trains, but it has no exclusive right to the use of the street, and the law imposes upon it, as upon all other persons, the duty of using its property in such manner as not to injure others who are themselves lawfully using the street and crossing. The running of locomotives and trains at a high rate of speed over street crossings in a city, even where the ordinary signals or the statutory warnings are given, may constitute negligence, and render the company liable for injuries occasioned thereby. And, where no signals are required by statute, a failure to give reasonable notice and warning of the approach of a locomotive by ringing the bell or sounding the whistle may subject the company to liability, where a traveler at the crossing is injured without contributory fault on his part. If the dangers of the situation require it, extraordinary precautions must be taken by the company to protect the public from injuries likely to occur at such crossing. Neither the ringing of the locomotive bell, nor the sounding of the whistle, nor the maintenance of a flagman at a street crossing is sufficient of itself to exonerate the railroad company from responsibility for an accident and injury resulting from the high and dangerous speed of the train, if these precautions were inadequate to render the public reasonably safe and secure in the lawful and careful use of the street. In such cases, if grade crossings are maintained, a material reduction of the speed of the train, or the erection and maintenance of safety gates, or other like measures, may be the only means, or the most reasonable and available means, by which the persons lawfully and carefully using the street may be sufficiently protected against accident. At such crossings, where there are two or more tracks parallel with each other and only a few feet apart, the risk of accident is greatly increased, and it is necessarily dangerous to a very high degree to run two trains in opposite directions on the parallel tracks at the same time, the one entirely hiding the other from the view of passengers waiting to cross the tracks and drowning the noise of the farther train.

The Chicago, etc., R. Co. v. Boggs, 101 Ind. 522, 51 Am. Rep. 761, is a strong case, and is very much in point. There one train followed another so closely on the same track that the noise of the first train drowned the signals of the train following it, and a traveler was struck and seriously injured by the second train. Upon this branch of the case the court said: “It may be laid down as settled law that the omission to give the signals required by the statute constitutes culpable negligence, and that such signals are intended to warn travelers in lawful use of the highway of approaching trains. As this is settled law, positively declared by statute, the railroad company cannot disobey it without incurring liability to a traveler who is injured without fault on his part contributing to the injury. Nor can the company by its own wrong render unavailing the signals required by law. If it runs one train so close upon another that there is no time to give the warning in the manner prescribed by law, it is guilty of negligence. It is obvious that the object of the statute would be defeated if one train could be run so close upon another as that the noise and rumble of the leading train would drown the signals of the train following it. Railroad companies have no greater rights to the crossing than the traveler, except the right to priority in passing, and they have no right to do any act that will mislead a traveler and expose him to needless danger. *** There are many cases holding that if a railroad company creates an...

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