Cleveland v. Carey, 4,750.

Docket NºNo. 4,750.
Citation33 Ind.App. 275, 71 N.E. 244
Case DateJune 01, 1904
CourtCourt of Appeals of Indiana

33 Ind.App. 275
71 N.E. 244


No. 4,750.

Appellate Court of Indiana, Division No. 1.

June 1, 1904.

Appeal from Circuit Court, Delaware County; Jos. G. Leffler, Judge.

Action by Sarah E. Carey against the Cleveland, Cincinnati, Chicago & St. Louis Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

[71 N.E. 245]

Thompson & Thompson, for appellant.
Mann & Ross and Bingham & Long, for appellee.


Appellee recovered damages for injuries received through the alleged negligence of appellant. Errors assigned: Overruling the demurrer to the amended complaint, the motion for judgment on answers to interrogatories, and the motion for a new trial.

The amended complaint avers: That appellant's main and side tracks, about 6 feet apart, run almost due east and west across Elm street, about 50 feet wide; that, because of certain obstructions (described) on the west side of the street, the view of both tracks was cut off, and persons on foot or in vehicles were unable to see more than 10 feet westward along the track, except by going directly thereon. Appellee and her husband, in a one-horse open sleigh, approached the crossing from the south, driving in a walk. They both continued to look and listen for trains, and within 10 or 15 feet of the south track the horse was stopped, and appellee and her husband looked and listened for the purpose of ascertaining whether any train was approaching. That neither of them saw or heard any train. That they continued to look and listen, and drove upon the crossing, and, without any signal or warning whatever, appellant negligently pushed a train of freight cars upon the crossing in such close proximity to the horse that, but for the whirling and running of the horse, the cars would have collided with the conveyance. That, on account thereof, the horse became unmanageable, and suddenly turned away from the cars, and ran eastward in front of the train, upsetting the sleigh and throwing appellee upon the track, whereby she was permanently injured. That when appellant pushed the train, consisting of an engine and several freight cars, upon and over the crossing, it failed and neglected to give any signals or warnings by ringing the bell or sounding the whistle. That there was no person near or at the end of the train to give any warnings, and no flagman. That, when appellee discovered the train, it was in such close proximity to the horse and conveyance that it was impossible to escape a collision therewith by driving across the track, or either to back or turn off from the crossing, or otherwise escape without a collision with the train which was so run upon them without any warning whatever. That the horse was gentle and accustomed to trains, and was under full control until he became unmanageable as above stated. That appellee was unacquainted with the crossing, did not know the time of trains, was not familiar with the warnings and obstructions, and had never before traveled over the crossing. That those in charge of the train negligently and carelessly operated it, in this: that no warning was given of its approach by ringing the bell, sounding the whistle, or otherwise, and negligently and carelessly failed to have any light on the end of the car. That appellee and her husband had no knowledge of the approach of the train, and that appellee was free from fault.

The theory of the pleading is that, because of the failure of those in charge of the train to give any warning of its approach, appellee was induced to approach within an unsafe proximity to the crossing, and because of this close proximity the horse became frightened at the train and became unmanageable. The object in requiring signals to be given is not altogether to prevent a collision with the train, but to enable travelers approaching the crossing to avoid the danger arising from being in close proximity to the track when the train passes. The pleading shows that the negligence of appellant in failing to give any signals or warning of the approach of the train was the proximate cause of the injury; that this negligence on the part of those in charge of the train led appellee into a place of danger. The proximate cause of an injury is not necessarily the immediate cause, but must be the efficient cause, and the efficient cause is that which sets in motion the chain of circumstances

[71 N.E. 246]

leading up to the injury. Causes that are merely incidental to a superior or controlling agency are not proximate causes, though they may be nearer in time to the result. Under the facts averred, it was not necessary to show that the train was running at any particular rate of speed. This is not the negligence relied upon. While the failure to give signals or warnings does not excuse the traveler from exercising due care, yet the failure to give them may be considered in determining the question of the traveler's conduct before and at the time he approached the crossing. The pleading clearly shows that appellee and her husband approached the crossing with caution, and that they were trying to avoid danger. They were not required to do more than exercise prudence and caution in proportion to the dangers incident to such a crossing as the facts averred show this one to have been. And we think the complaint shows this. There was no error in overruling the demurrer to the complaint. See Terre Haute, etc., R. Co. v. Brunker, 128 Ind. 542, 26 N. E. 178;Pennsylvania Co. v. Congdon, 134 Ind. 226, 33 N. E. 795, 39 Am. St. Rep. 251;Pittsburgh, etc., R. Co. v. Burton, 139 Ind. 357, 37 N. E. 150, 38 N. E. 594.

It is further argued that the answers to interrogatories show that appellant was entitled to judgment. It is not necessary that appellant's liability should be shown by the answers to the interrogatories. The general verdict finds appellant guilty of negligence, and, unless the answers are in conflict with the general verdict, it must stand. The conduct of those in charge of the train in failing to give any warning of the approach of the train is not excused by the fact that two employés were on top of the train, one of whom was on the front car, on the lookout, who saw appellee as soon as she and her husband came within the range of his vision, and who instantly gave the signal, and the train promptly stopped. The jury expressly find that he gave no warning to appellee and her husband, and...

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22 cases
  • Pittsburgh, C., C. & St. L. Ry. Co. v. Terrell, 21,948.
    • United States
    • Indiana Supreme Court of Indiana
    • 5 October 1911
    ...App. 640, 45 N. E. 812;Aurelius v. Lake Erie, etc., R. Co. (1897) 19 Ind. App. 585, 49 N. E. 857;Cleveland, etc., R. Co. v. Carey (1904) 33 Ind. App. 275, 71 N. E. 244;Pennsylvania Co. v. Fertig, 34 Ind. App. 459, 70 N. E. 834;Chicago, etc., R. Co. v. Coon (App. 1911) 93 N. E. 563. And it h......
  • Pittsburgh, Cincinnati, Chicago And St. Louis Railway Co. v. Terrell, 21,948
    • United States
    • Indiana Supreme Court of Indiana
    • 5 October 1911
    ...640, 45 N.E. 812; Aurelius v. Lake Erie, etc., R. Co. (1898), 19 Ind.App. 584, 49 N.E. 857; Cleveland, etc., R. Co. v. Carey (1904), 33 Ind.App. 275, 71 N.E. 244; Pennsylvania Co. v. Fertig (1905), 34 Ind.App. 459, 70 N.E. 834; Chicago, etc., R. Co. v. Coon, supra. And it has been expressly......
  • Fishburn v. Burlington & Northwestern Railway Co.
    • United States
    • United States State Supreme Court of Iowa
    • 9 May 1905
    ...186, 49 N.W. 76; Kostelecky v. Scherhart, 99 Iowa 120, 68 N.W. 591; Abbot's Trial Evidence (2d Ed.) 408; Cleveland & C. R. R. v. Carey, 33 Ind.App. 275, 71 N.E. 244; R. Co. v. Schmidt, 163 Ind. 360, 71 N.E. 201; R. Co. v. Shanks, 139 Ala. 489. (37 So. 166). This rule is peculiarly applicabl......
  • Fishburn v. Burlington & N. W. Ry. Co.
    • United States
    • United States State Supreme Court of Iowa
    • 9 May 1905
    ...49 N. W. 76;Kostelecky v. Scherhart, 99 Iowa, 120, 68 N. W. 591; Abbot's Trial Ev. (2d Ed.) 408; Cleveland & C. R. R. v. Carey (Ind. App.) 71 N. E. 244; R. Co. v. Schmidt (Ind. Sup.) 71 N. E. 201; R. Co. v. Shanks (Ala.) 37 South. 166. This rule is peculiarly applicable in the case of a chi......
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