Cleveland, Cincinnati, Chicago & St. Louis Railway v. Starks
| Decision Date | 06 November 1914 |
| Docket Number | 7,908 |
| Citation | 106 N.E. 646,58 Ind.App. 341 |
| Parties | THE CLEVELAND, CINCINNATI, CHICAGO AND ST. LOUIS RAILWAY COMPANY v. STARKS, ADMINISTRATRIX |
| Court | Indiana Appellate Court |
Rehearing denied January 29, 1915. Transfer denied March 26 1915.
From Ripley Circuit Court; F. M. Thompson, Judge.
Action by Mary A. Starks, administratrix of the estate of Francis Starks, deceased, against The Cleveland, Cincinnati, Chicago and St. Louis Railway Company. From a judgment for plaintiff the defendant appeals.
Affirmed.
John A. Cravens, T. S. Cravens, L. J. Hackney and F. L. Littleton, for appellant.
Thomas L. Creath, J. K. Ewing and Frank Hamilton, for appellee.
This is the second appeal in this case. In an appeal taken from a former judgment rendered in favor of appellee, the judgment was reversed on an erroneous instruction, and a new trial ordered. Cleveland, etc., R. Co. v. Starks (1910), 174 Ind. 345, 92 N.E. 54. On the second trial, appellee again recovered judgment, from which this appeal is taken. The cause was submitted to the jury on issues of fact formed by a general denial to the second, third and fourth paragraphs of complaint charging appellant with negligently causing the death of appellee's intestate, and a fifth paragraph charging appellant with wilfully causing the death of said intestate.
Prior to the first appeal, the court overruled demurrers addressed to each paragraph of the complaint. Errors are separately assigned on the overruling of appellant's demurrers to the fourth and fifth paragraphs, and on the overruling of appellant's motion for a new trial.
Briefly stated, the facts are in part as follows: On February 14, 1906, Francis Starks, appellee's intestate, seated in a buggy drawn by one horse, drove south along Mulberry Street in the town of Batesville, Ripley County, Indiana, and entered on appellant's track where it crosses the street at grade, and was thereupon killed by a passenger train from the east, which collided with his buggy. The intestate left surviving him certain minor children and also his widow, the appellee, who, as administratrix, brings this suit. The further facts will appear in the course of the opinion.
The second paragraph of complaint charges that the death of the decedent was negligently caused by appellant's failure to give the statutory signals or other warning of the train's approach to the crossing. The third paragraph contains the same charge of negligence as the second paragraph and, in addition, a general charge of negligence in operating the train, resulting in decedent's death. On the first appeal, the Supreme Court expressly held the second and third paragraphs sufficient. The fourth paragraph also was held sufficient as against all objections urged against it. Generally stated, it is now argued that said paragraph does not include a sufficient charge of negligence. By said paragraph, facts descriptive of the nature of the crossing are specifically averred, to the effect that buildings, trees, shrubbery, etc., a cut in the right of way and a curved track obstructed both the view of and the noise made by a train approaching from the east. It is alleged that Batesville contained about 2,500 inhabitants, and that Mulberry Street crossing was situated in a very populous neighborhood, and that said crossing was being used continuously and extensively by persons both on foot and in vehicles. Facts are specifically alleged to the effect that decedent was not guilty of contributory negligence in approaching and entering on the crossing. It is not alleged that decedent was unacquainted with the crossing, or that the statutory crossing signals were omitted. The negligence charged is to the effect that appellant, with full knowledge of the obstructed nature of the crossing, and of the effect of the obstructions, and of the other facts pleaded, carelessly and negligently operated its train, running late, toward and over the crossing, and against the decedent who was riding in a buggy, at a speed exceeding 60 miles per hour, and thereby killed decedent. In our judgment, considering the rate of speed, in connection with the nature of the crossing and appellant's alleged knowledge of the facts, the paragraph states a cause of action. Without further discussion, we cite the following: Chicago, etc., R. Co. v. Spilker (1893), 134 Ind. 380, 33 N.E. 280, 34 N.E. 218; Terre Haute, etc., R. Co. v. Clark (1880), 73 Ind. 168; Louisville, etc., R. Co. v. Stommel (1890), 126 Ind. 35, 25 N.E. 863; Brooks v. Muncie, etc., Traction Co. (1911), 176 Ind. 298, 306, 95 N.E. 1006; 33 Cyc. 971, 972; Lake Shore, etc., R. Co. v. Barnes (1906), 3 L.R.A. (N.S.) 778, note.
The theory of the fifth paragraph of complaint is that the injury was wilfully inflicted. It is argued that this paragraph is insufficient by reason of the absence of an averment that appellant or its servants intended to cause the injury sustained by decedent, or intended to collide with him. It is averred in this paragraph that when appellant's train was 400 feet east of the crossing, the engineer in charge thereof saw the decedent in a buggy drawn by one horse, approaching and entering on the crossing; that the engineer did nothing to warn decedent of the impending danger, and did not in any manner attempt to stop or check the speed of the train when he saw decedent driving to and on the crossing, and that the engineer, seeing and fully comprehending decedent's perilous position, purposely, wilfully and without regard to the rights of the decedent, caused the locomotive, moving at a speed exceeding 60 miles per hour, to run upon and strike the buggy in which decedent was then riding, throwing him to the ground with great violence and killing him. The necessary effect of running such a ponderous instrumentality as a train of cars, moving at the rate of 60 miles per hour, into a buggy on a crossing, is the death or serious injury of the occupants of such buggy. It is therefore a necessary inference that if the engineer purposely and wilfully caused such train, moving as aforesaid, to collide with the buggy, having full knowledge that the decedent was seated therein, he intended the death or serious injury of decedent. Under the more recent decisions, the paragraph is therefore sufficient. Domestic Block Coal Co. v. DeArmey (1913), 179 Ind. 592, 100 N.E. 675, 102 N.E. 99; Kahle v. Crown Oil Co. (1913), 180 Ind. 131, 100 N.E. 681; Vandalia R. Co. v. Clem (1911), 49 Ind.App. 94, 96 N.E. 789.
It is argued that on the first appeal of this case, the Supreme Court held this paragraph of complaint sufficient. In that appeal, error was assigned on the overruling of a demurrer to the paragraph. On that subject the court said: Cleveland, etc., R. Co. v. Starks, supra. It thus appears that on such appeal, the court did not determine the sufficiency of such paragraph, except as effect was given to such waiver. However, the case having been reversed, and a new trial ordered and had, and the question of the sufficiency of the paragraph not having been resubmitted to the trial court in any manner, such waiver extends to this appeal. See the following: Ohio Valley Trust Co. v. Wernke (1913), 179 Ind. 49, 99 N.E. 734; Chicago, etc., R. Co. v. Dinius (1913), 180 Ind. 596, 103 N.E. 652; Stevens v. Templeton (1910), 174 Ind. 129, 91 N.E. 563; Wine v. Woods (1902), 158 Ind. 388, 63 N.E. 759; Davis v. Krug (1884), 95 Ind. 1; Pittsburgh, etc., R. Co. v. Lightheiser (1907), 168 Ind. 438, 467, 78 N.E. 1033; Adams v. Board, etc. (1905), 165 Ind. 530, 76 N.E. 113; Consumers Paper Co. v. Eyer (1903), 160 Ind. 424, 66 N.E. 994.
Complaint is made of the court's refusal to give certain instructions requested by appellant, among them, Nos. 6 and 14. No. 6 is an abstract instruction to the effect that if a traveler on a highway approaching a railroad crossing, seated in a buggy, obstructs his view by side curtains and a storm front on the buggy, so that he does not see the approaching train in time to avoid injury, and that if he had not so obstructed his view he could have seen such train in time to have avoided injury, such traveler as a matter of law is guilty of negligence contributing to his injury. Practically the only distinction between instruction No. 14 requested and refused, and instruction No. 6 is that the former is concretely applied to decedent, and embraces also the element of obstruction to the sound of the approaching train resulting from such front and side curtains. The substance of these instructions so refused is included in instruction No. 13 given at appellant's request, which instruction, in the judgment of this court, was more favorable to appellant than it was entitled to be. Under such instructions, a conclusion of contributory negligence as matter of law would flow from the mere fact of such enclosure and its assumed effects, regardless of the nature of the crossing, the manner in which the train was operated, or the degree of care exercised by the traveler, under investigation. It can scarcely be said that the mere act of so enclosing himself is of itself either wrongful, unlawful or negligent on the part of such traveler. If he so encloses himself, he must, of course, exercise care commensurate with the situation in which he finds himself and created in part by him. If this he does, he is not guilty of contributory negligence, either as matter of fact or matter of law. In such a situation, as in ...
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