Cleveland, Cincinnati, Columbus and Indianapolis Railway Company v. Harrington
| Citation | 30 N.E. 37,131 Ind. 426 |
| Decision Date | 16 February 1892 |
| Docket Number | 14,484 |
| Parties | Cleveland, Cincinnati, Columbus and Indianapolis Railway Company v. Harrington |
| Court | Indiana Supreme Court |
Petition for a Rehearing Overruled April 29, 1892.
From the Marion Superior Court.
Judgment affirmed.
H. H Poppleton, A. C. Harris, W. H. Calkins and J. T. Dye, for appellants.
B Harrison, W. H. H. Miller and J. B. Elam for appellee.
This was an action by the appellee, in the Marion Superior Court, against the appellant, to recover damages occasioned by a personal injury.
The injury on account of which damages are claimed occurred in the city of Indianapolis at a point where the appellant's railroad tracks cross Ohio street. The complaint alleges substantially, among other things, that the train which inflicted the injury for which suit was brought was negligently run at a high and dangerous rate of speed in violation of a city ordinance, and without ringing the bell. It also contains the usual allegation that the appellee was without fault or negligence on her part.
A trial of the cause, at special term of the superior court, resulted in a verdict for appellee, upon which the court rendered judgment over a motion for a new trial. Upon appeal to the general term the judgment at special term was affirmed, from which this appeal is prosecuted.
It is insisted here that the judgment of the superior court should be reversed, because:
First. The undisputed facts in the case do not prove that the appellee was without negligence on her part.
Second. The instructions given by the court do not state the law of the case properly or correctly.
Third. The court erred in refusing to permit the appellant to prove that the ordinance of the city of Indianapolis regulating the speed of trains within the corporate limits of the city was unreasonable and void.
The facts in the case necessary to understand the questions presented for our decision, are substantially as follows: Ohio street, in the city of Indianapolis, runs east and west, is sixty feet wide, and at the point where the accident in question occurred, has an improved roadway in the center, and sidewalks on either side. It is much travelled, both by persons on foot and in vehicles. The appellant's railroad crosses it at an acute angle, its course being from northeast to southwest. North of Ohio street the railway track curves toward the north, there being two or more curves, varying in degree, until it finally takes an almost due north course until it reaches what is known as the Massachusetts avenue station. Southwest of the Ohio street crossing, and in the direction of the Union station, the railway track curves towards the west until it attains an almost due west course at the station.
Very much of this curvature occurs in the immediate vicinity of the Ohio street crossing. At the point where the accident occurred there are four railway tracks crossing Ohio street, near together, and substantially parallel with each other. In travelling west on Ohio street the first track reached at the crossing is known as the Indianapolis, Bloomington and Western Railway track. This track, at the time of the accident, was owned and used exclusively by the Indianapolis, Bloomington and Western Railway Company. The track immediately west of this was used by the appellant and other railroad companies, and was known as the "down main," being the main track by which trains passed from Massachusetts avenue station to the Union station. The track next immediately west was called the "up main," being used by the appellant, and other railroad companies, in running trains from the Union station to Massachusetts avenue station. The next was a siding owned by the appellant and constituted the westerly track of the group.
Just south of Ohio street is a short siding connecting the "up main" with the "down main." A short distance east of this group of tracks a small stream, known as Pogue's Run, crosses Ohio street, and for some distance northeast of the street the general course of the stream is parallel with the railroad above described and not far from it. On this side the railroad tracks there are but few buildings near them. In walking west on Ohio street, when at a point near the bridge over Pogue's Run, the traveller has a comparatively unobstructed view of the railroad tracks to the northwest. The view in this direction, after passing a structure known as Branham's coal yard, near Pogue's Run bridge, has no obstruction until after the tracks are passed. At the time of the accident the south side of Ohio street, as well as the whole region between the railroad tracks and Pogue's Run, in the direction of the Union station, was well covered with buildings and other structures. On the south side of this street, and abutting immediately upon it, there was a large lumber yard enclosed by a high tight fence, which, with other structures, occupied the space west of Pine street, running north and south to a point about eight feet east of the I., B. & W. track.
At the time of injury of which complaint is made, the appellee was about forty years of age, in good health, with the senses of sight and hearing unimpaired. On the morning of the 13th day of April, 1886, about 7 o'clock, she started from her home, east of the Ohio street crossing, to Market, and walked west on the south side of Ohio street at a moderate gait. The morning was bright and no wind was blowing.
As she approached the railway crossing a freight train, composed of from ten to fifteen cars, with engine and caboose attached, was moving north on the "up main" at the speed of about four miles an hour, the rear of the train being near the crossing at the time she reached it. The train was making the noise usually made by moving trains, the engine was ringing the bell and the steam was escaping from the dome. The noise made by this train was such as rendered it difficult, if not impossible, to hear or to distinguish the noise of other approaching trains. The appellant, when eighty or ninety feet east of the "down main," could see north up the track a distance of eight hundred feet. At that point she looked and saw no approaching train. When at the east side of the first track, which is thirty-seven feet west of the "down main," she was able to see north up the track for a distance of four hundred feet. She again looked and saw no approaching train. She then crossed the first track and turned her attention to the southwest to look for approaching trains from that direction, but as she attempted to cross the "down main" one of the appellant's engines, approaching from the north, struck her, inflicting serious injuries.
The engine which collided with her was drawing a passenger train, and was running at the speed of eighteen or twenty miles an hour on the "down main," and was not ringing the bell. At the time of the accident there was an ordinance of the city of Indianapolis, in force, which prohibited the running of engines, within the corporate limits of the city, at a greater rate of speed than four miles an hour.
The appellee was familiar with the crossing, having passed over it frequently.
It is contended by the appellant that these facts and circumstances make a case in which the court is bound to adjudge, as matter of law, that the appellee was guilty of such contributory negligence as precludes her from recovering in this action, while on the other hand it is contended by the appellee that they make a case where the question of contributory negligence should be left to the jury, under proper instructions from the court.
It is not disputed or denied that the facts make such a case of negligence on the part of the appellant's employees as renders the appellant liable for the injury to the appellee, for which she sues, provided she was not guilty of any negligence which contributed to the injury.
The duty of a traveller approaching a point on a public highway where a railroad track is crossed upon the same level, has been so often declared by the courts in adjudicated cases and is so well settled and understood by the profession, that it needs no further elaboration. All that is necessary to do here is to refer to some of the cases in which that duty is discussed and defined, and by so doing avoid encumbering this opinion with useless repetition: Ohio, etc., R. W. Co. v. Hill, 117 Ind. 56, 18 N.E. 461; Baltimore, etc., R. R. Co. v. Walborn, 127 Ind. 142, 26 N.E. 207; Mann v. Belt R. R., etc., Co., 128 Ind. 138, 26 N.E. 819.
Where one approaching a railroad crossing of the kind above indicated is injured, and the facts and circumstances are not controverted, and the inferences from such facts and circumstances are unequivocal, and can lead to but one conclusion, the court will declare, as matter of law, whether the party injured was, or was not, guilty of contributory negligence; but, in practice, it often occurs that the facts and circumstances surrounding a particular case are such as to warrant different inferences, so that one impartial sensible man may draw the inference and conclusion that the injured party was guilty of negligence, while another man equally impartial and sensible might draw a different conclusion; and in such cases the courts will not adjudge the question of negligence, but will leave it to the jury, under proper instructions. Baltimore, etc., R. R. Co. v. Walborn, supra; Mann v. Belt R. R., etc., Co., supra.
The question with which we are confronted is as to which of these classes the case under consideration belongs.
It can not be said that the appellee exercised no care to avoid the collision described in the complaint. It is evident from the facts and circumstances above set forth that very few...
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