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

• Citation: 128 N.E. 836,190 Ind. 633
• Decision Date: 30 November 1920
• Docket Number: 23,405
• Parties: Cleveland, Cincinnati, Chicago and St. Louis Railway Company v. Baker
• Court: Supreme Court of Indiana

128 N.E. 836

190 Ind. 633

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

No. 23,405

Supreme Court of Indiana

November 30, 1920

Rehearing Denied June 21, 1921.

From Hendricks Circuit Court; George W. Brill, Judge.

Action by Elmer E. Baker against the Cleveland, Cincinnati, Chicago and St. Louis Railway Company. From a judgment for plaintiff the defendant appeals.

Affirmed.

Frank L. Littleton, Forest Chenoweth, Samuel D. Miller, Frank C Dailey, William H. Thompson and Alexander G. Cavins, for appellant.

Wymond J. Beckett, Joseph R. Beckett and Thad S. Adams, for appellee.

OPINION

Lairy, J.

Appellee recovered a judgment of $ 8,000 against appellant as damages resulting to him from a personal injury received in a collision between a tender attached to one of appellant's locomotives and an automobile driven by appellee. The collision occurred at a time when the servants of appellant were engaged in backing a locomotive with a tender back of it across West street in the city of Indianapolis, pulling a cut of two cars. The automobile driven by appellee approached from the north, and passing along the west side of a street car that had stopped a few feet north of appellant's tracks, it entered on the tracks of appellant where the collision occurred.

The case was tried on a complaint of two paragraphs to each of which a general denial was filed. The second paragraph of complaint is based on the alleged negligence of appellant in failing to ring the bell attached to the locomotive while approaching and crossing the street, and in backing a locomotive and tender across the street without having a man stationed on the rear end as required by certain ordinances of the city of Indianapolis, set out in this paragraph of complaint. The first paragraph proceeds on the theory that appellee was not harmed by the impact of the collision and that he would not have been injured if appellant's servants had exercised reasonable care after the collision occurred in discovering his peril and stopping the locomotive. It is alleged that after the collision the automobile was negligently shoved and pushed along the track for a distance of fifty feet to a switch post and that when the wheel of the automobile came in contact with the switch post the wheels were mashed and the automobile crushed and that appellee was injured by being caught and crushed in the broken parts of the automobile.

Appellant assigns ten errors on appeal, but only the sixth and ninth are relied on for reversal, as shown by the brief. These assignments will be considered in the inverse order of their assignment.

By the ninth assignment of error it is alleged that the court erred in overruling appellant's motion for a new trial. The specifications presented by the brief are that the verdict is not sustained by sufficient evidence, and that the court erred in giving certain instructions to the jury, and in refusing to give certain instructions tendered and requested by appellant.

Witnesses testified at the trial that the bell was not ringing as the locomotive was crossing the street, while other witnesses testified that it was ringing all the time while crossing. The same state of evidence obtains with reference to the presence of an employe of appellant on the rear end of the tender during the time. McGill testified that he was on the footboard on the rear end of the tender until he saw that there was about to be a collision with the approaching automobile and that he then jumped off on the south side of the track, while other witnesses stated that they were in a position to see the rear end of the tender and that nobody was on the footboard. This court cannot weigh conflicting evidence.

It is the duty of the jury in the first instance to consider all the evidence and to determine therefrom the truth as to the facts in controversy. When a motion for a new trial is filed which calls in question the sufficiency of the evidence to sustain the verdict, it then becomes the duty of the trial court to consider and weigh the evidence bearing on the material facts in controversy in view of the same considerations as control the jury in determining the credibility of witnesses and the weight of the evidence. If, after such consideration the trial court is of the opinion that the jury has erred in its conclusion as to a controverted fact which is essential to sustain the verdict, it is the duty of the trial court to correct the error by granting a new trial. This is a duty from which a trial court should not shrink, for the reason that an erroneous finding as to a controverted fact cannot be corrected on appeal.

Without doubt there was some evidence to show that the bell was not ringing, and that no one was stationed on the rear end of the tender as the locomotive backed it across the street. As the ordinances read in evidence provided that these precautions should be observed under the conditions shown, the failure on the part of appellant to observe them constituted negligence as a matter of law. The case thus made entitled appellant to recover on the second paragraph of complaint, unless it was shown by the evidence that appellee was guilty of negligence which proximately contributed to cause his injury.

If the general verdict rests on the second paragraph of the complaint, it would necessarily involve a finding by the jury that appellee was not negligent in any matter which contributed in causing the collision, for the reason that this paragraph proceeds on the theory that the injury to appellee was caused by the collision. If, on the other hand, the verdict rests on the first paragraph of complaint, negligence on the part of appellee which contributed to cause the collision would not defeat a recovery, for the reason that such paragraph is based on the theory that the collision did not proximately cause the injury, but that the injury was proximately caused by negligence of the appellant which intervened between the time of the collision and the time the automobile was crushed at the switch stand. Under such a state of facts, negligence on the part of appellee, to be available, must be shown to have intervened between the time of the collision and the time of the injury and to have proximately contributed to the final result.

Appellant takes the position that ordinary care, under the conditions and circumstances shown by the undisputed evidence, required the appellee to have stopped his automobile before driving past the end of the street car and onto the track, or at least to have reduced the speed at that place to such a rate as would have enabled him to stop it in case of danger before reaching the track.

The attention of the court is called to the fact that most of the circumstances and conditions surrounding appellee immediately prior to the collision are established by answers of the jury to interrogatories submitted by the court. It is well settled in this jurisdiction that, where a jury by an answer to such an interrogatory has decided a controverted fact on which there is a conflict of evidence, the answer of the jury as to such fact will be taken as true if there is evidence to support it; that this court on appeal will accept such fact as true, and will consider it in connection with the evidence in the record bearing on other material facts in determining whether the verdict is supported by evidence. Evansville, etc., Traction Co. v. Spiegel (1911), 49 Ind.App. 412, 94 N.E. 718, 97 N.E. 949; Barr v. Sumner (1915), 183 Ind. 402, 107 N.E. [190 Ind. 640] 675, 109 N.E. 193; National Biscuit Co. v. Wilson (1907), 169 Ind. 442, 82 N.E. 916.

Appellant asserts that, when the facts, circumstances and conditions disclosed by the answers to interrogatories are accepted as true, and that, when such facts are considered in connection with the evidence most favorable to appellee in regard to conditions and circumstances not covered by such answers, a case is made out which required the court to state as a matter of law that ordinary care required appellee to stop before driving past the end of the street car, or to reduce the speed of the car to such a rate as would have enabled him to stop before reaching a place of danger.

What a person of ordinary prudence would do or refrain from doing under a given state of conditions and circumstances and in view of the dangers to be anticipated, is generally a question of fact for the decision of a jury. The only exception to the rule arises where the conditions and circumstances and all other facts bearing on the question are undisputed, and where they give rise to a single inference or conclusion concerning which all reasonable minds would agree. These propositions have been so often stated as to require no authorities to sustain them.

Appellant relies on the exception stated to the general rule as applicable to the facts and circumstances shown by the record in this case.

It cannot be stated as a general proposition of law that ordinary care requires a traveler on a highway to stop before entering on the track of a steam railway company, and neither can it be generally stated as a matter of law that ordinary care does not require that precaution. Whether such precaution is or is not required in the exercise of due care depends on the conditions and circumstances disclosed in the particular case. In the vast majority of cases the question is one of fact, and the cases must be rare which require the court to decide it as a question of law, but there can be no doubt that such cases have arisen and that they will continue to arise.

As bearing on the question under consideration, the record discloses certain facts which this court is required to accept as true in passing on the...