Cleveland, Cincinnati, Chicago And St. Louis Railway Co. v. Lynn

• Decision Date: 20 June 1911
• Docket Number: 21,650
• Citation: 95 N.E. 577,177 Ind. 311
• Parties: Cleveland, Cincinnati, Chicago and St. Louis Railway Company v. Lynn
• Court: Indiana Supreme Court

95 N.E. 577

177 Ind. 311

Cleveland, Cincinnati, Chicago and St. Louis Railway Company v. Lynn

No. 21,650

Supreme Court of Indiana

June 20, 1911

Rehearing Denied April 16, 1912, Reported at: 177 Ind. 311 at 328.

From Putnam Circuit Court; John M. Rawley, Judge.

Action by Robert R. Lynn against the Cleveland, Cincinnati, Chicago and St. Louis Railway Company. From a judgment for plaintiff the defendant appeals.

Affirmed.

Lamb, Beasley, Douthitt & Crawford, T. C. Grooms, Frank L. Littleton and L. J. Hackney, for appellant.

John O. Piety, Silas A. Hays, Miller, Shirley, Miller & Thompson, for appellee.

OPINION

Myers, J.

This is the second appeal in this cause, Cleveland, etc., R. Co. v. Lynn (1909), 171 Ind. 589, 85 N.E. 999, 86 N.E. 1017. On the return of the cause to the court below, a further, or fourth paragraph of complaint was filed, to which a demurrer was addressed for want of facts sufficient to constitute a cause of action, and was overruled, and that ruling is the first alleged error presented.

The allegations of this paragraph, with reference to looking and listening, which is the ground of attack on this paragraph, are identical with the allegations of the second and third paragraphs, which were before the court on the former appeal, where the same contention was made as here, viz., that the complaint shows that appellee did not look or listen until he was within two or three steps of the track, at which time he was looking to the southeast, when he was immediately struck by a train coming from the northeast, he having alleged a previous looking to the northeast, and showing a train going in that direction on the eastern track of a double track, the insistence being that his failure to see or hear the train coming from the northeast constitutes contributory negligence as a matter of law.

It was determined on the former appeal, under the same allegations, that it cannot be said, as a matter of law, that, under all circumstances or conditions, looking or listening at a particular time, in a particular direction, or from a particular place is required. Chicago, etc., R. Co. v. Fretz (1910), 173 Ind. 519, 90 N.E. 76; Greenawaldt v. Lake Shore, etc., R. Co. (1905), 165 Ind. 219, 74 N.E. 1081; Cleveland, etc., R. Co. v. Stewart (1903), 161 Ind. 242, 68 N.E. 170; Stoy v. Louisville, etc., R. Co. (1903), 160 Ind. 144, 66 N.E. 615; Pittsburgh, etc., R. Co. v. Burton (1894), 139 Ind. 357, 37 N.E. 150, 38 N.E. 594; Chicago, etc., R. Co. v. Hedges (1886), 105 Ind. 398, 7 N.E. 801; Greany v. Long Island R. Co. (1886), 101 N.Y. 419, 5 N.E. 425; Case v. Chicago, etc., R. Co. (1910), 147 Iowa 747, 126 N.W. 1037; Minot v. Boston, etc., Railroad (1905), 73 N.H. 317, 61 A. 509; Chicago, etc., R. Co. v. Keegan (1904), 112 Ill.App. 338; Oldenburg v. New York, etc., R. Co. (1891), 124 N.Y. 414, 26 N.E. 1021; 3 Elliott, Railroads (2d ed.) § 1179a and cases cited.

The only material allegations of the fourth paragraph different from the second and third paragraphs are that in the two latter there is no direct allegation as to the direction from which the train which struck appellee came, while in the fourth paragraph it is alleged that it came from the northeast. The opinion of the court in the former appeal discloses that other allegations of the second and third paragraphs were such as to disclose that the train came from the northeast. The able counsel earnestly insist that a different question is presented by the fourth paragraph, in the allegation that the train came from the northeast, but the application of the rule declared in the former appeal, and in former cases, does not seem to us to change the situation. The same obstruction and the same surrounding conditions are alleged in the second and third paragraphs.

Appellant's contention amounts to this: That as, under the allegations, appellee looked first to the northeast, and then to the southeast where there were not alleged to be any obstructions, and the train came from the northeast, he should have either looked first, or kept looking in that direction, or looked after he passed the watch-house. The complaint alleges that the view to the northeast was obstructed until appellee reached a point within eight or nine feet of the west track; that the track was double, and from a short distance south of the point where he was located, curved considerably to the south and east, and that east and south of these tracks were the yards of another railway company, in which were many tracks and switches curving with appellant's main tracks. It is not averred which of the two tracks was used for the north bound trains, nor which for the south bound trains, and we cannot say, because there is not alleged to have been an obstruction to the south and east, that he was under no obligation to look south and east, and should have looked to the northeast. It was his duty, in any event, to look to the southeast, because he could not excuse himself for not looking in that direction, also, to guard against possible injury. Pittsburgh, etc., R. Co. v. Seivers (1904), 162 Ind. 234, 67 N.E. 680, 70 N.E. 133; Stoy v. Louisville, etc., R. Co., supra; Malott v. Hawkins (1902), 159 Ind. 127, 63 N.E. 308; Morford v. Chicago, etc., R. Co. (1902), 158 Ind. 494, 63 N.E. 857.

The fact that no obstruction is alleged to the south and east, and might require less attention than in looking to the northeast, in any event only shows a difference in the degree of care required as to one direction rather than another, and still leaves the question as to the care which is alleged as to looking to the northeast, and as the allegations are the same on that question in each paragraph, it must be held to have been determined, as it was specifically, as is shown by the opinion on the former appeal. It is urged that as it is alleged that the track was straight to the northeast, and no other obstruction than the watch-house is alleged, it must be taken that after appellee had passed the watch-house he could have seen. But it is averred that he stopped and looked up the track 250 feet, to see if any train was approaching from that direction, and also listened, but did not see any train approaching, nor hear one. The former appeal directs attention to this allegation, coupled with showing the distance the train would travel in a few seconds, and the possibility that the train was not within 250 feet. If appellant had desired a more specific allegation as to what distance to the northeast the track was straight, or as to what was meant by "a considerable distance," it should have made a motion for that purpose. The question was determined adversely to appellant on the former appeal, in which it was squarely held that appellee's failure to look to the north, after passing the watch-house, was not, as a matter of law, negligence.

It is next urged that as the allegation is that a person approaching the track from the west "would have his view of defendant's tracks to the north obstructed until," could refer only to the date of filing the complaint, and does not relate to the time of the incident, and is not an averment that the watch-house did obstruct the view. The allegations show that on the day appellee was injured, with others he was engaged in moving a watch-house, and had just placed it, and that his view to the north would have been obstructed by said watch-house about twenty feet west of the track, continuously up to a point within eight or nine feet of the west track. The allegations show the obstructions to relate to the time of setting the watch-house, and of the accident, and is a sufficient allegation of the obstruction, for if it would obstruct, necessarily it did.

It is next urged that as appellant has alleged in detail just what appellee did, there is a clear inference of contributory negligence, based on the theory that he was bound to see and hear what, by looking and listening he would have seen, or heard. But the difficulty with appellant's position on that point is, that that is asking us to assume that appellee was bound to look or listen at a particular place, in a particular direction, at almost a particular instant of time, irrespective of other relations or conditions. It might be a fair inference of fact, but there is in it just the difference between looking or listening, where the court can say that he must have seen or heard, and looking or listening under conditions where it is possible that he might not have seen or heard, with the added duty of appellant to have a bell ringing, and to move its cars not to exceed five miles an hour.

The allegations are that the Chicago and Eastern Illinois Railroad Company had a great number of main tracks and side-tracks east of, and parallel with appellant's tracks; that appellee was an employe of the former company that at the time of the accident he was engaged, with his coworkers, in removing the watch-house, which occasioned the obstruction of which he complains, from the south side of Third avenue to the north side; that after setting the watch-house appellee started from a point on the north side of said avenue, about twenty feet west of appellant's west track, to cross said defendant's tracks, and when he got to the southeast corner of the watch-house (which is elsewhere alleged to have been in dimensions nine feet north and south, and six feet east and west, and nine feet west of the west track) "he stopped and looked up defendant's tracks for a distance of about 250 feet, to see if any train was approaching from that direction, and also listened, and did not see any train approaching from that direction on defendant's west track, and neither did he hear any train approaching on said track, but he saw and heard a train on said d...