Engle v. Cleveland, C., C. & St. L. Ry. Co.
| Decision Date | 25 November 1925 |
| Docket Number | No. 24372.,24372. |
| Citation | 149 N.E. 643,197 Ind. 263 |
| Court | Indiana Supreme Court |
| Parties | ENGLE v. CLEVELAND, C., C. & ST. L. RY. CO. |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Delaware County; W. H. Thompson, Judge.
Action by James S. Engle against the Cleveland, Cincinnati, Chicago & St. Louis Railway Company. From a judgment for defendant, plaintiff appeals. Affirmed.
Superseding opinion of Appellate Court in 130 N. E. 812.
W. G. Parry, of Winchester, Leffler & Ball, of Muncie, and F. S. Caldwell, of Winchester, for appellant.
Frank L. Littleton, of Indianapolis, Bales & Macy, of Winchester, and Orr & Clark, of Muncie, for appellee.
Appellant, as plaintiff below, sued for damages caused by a locomotive drawing a freight train over the tracks of appellee (defendant below) across Union street in the city of Winchester, Ind., striking and injuring his automobile when it was stalled on the crossing. A former trial had resulted in a verdict in favor of the defendant, with answers to 37 interrogatories, after which a new trial was granted, and a change of venue taken. A second trial also resulted in a general verdict in favor of the defendant, with which the jury returned answers to 57 interrogatories. Overruling the motion for a new trial is assigned as error, under which appellant specified the giving of each of five instructions, and the refusal to give each of six others.
The first and third paragraphs of the complaint proceeded upon the theory of the “last clear chance,” the first paragraph counting upon the alleged negligence of the engineer in charge of defendant's locomotive after he had knowledge of the helpless condition of plaintiff and his inability to move the automobile off the track in time to avoid being struck by the approaching train, and the third paragraph alleging that defendant's flagman at the crossing negligently failed to signal the engineer to stop his train after he had knowledge of such condition. The second paragraph of the complaint proceeded on the theory that the flagman at the crossing negligently signaled the plaintiff to come forward and pass over the crossing when a train was approaching so near thereto that plaintiff did not have time to get across in safety, though he was without fault or negligence on his part. But since it is not contended that there was evidence tending to prove the cause of action alleged in the second paragraph, and since the jury found by its answers to interrogatories that at the time the signal to cross was given by the watchman, defendant's locomotive was 1,000 feet away, approaching at the rate of 12 miles an hour, and that there was sufficient time thereafter in which plaintiff and his automobile could have passed safely over the tracks ahead of the train, if the clutch of his car had been in proper working order, we shall not further consider his alleged right of action under that paragraph.
The first paragraph of the complaint alleged, in substance, that while defendant was operating a freight train drawn by a locomotive engine from west to east upon its railroad toward the crossing over Union street in the city of Winchester, Ind., plaintiff was riding in and driving an automobile which he owned upon and along Union street from north to south with the intent and purpose of crossing said defendant's railroad track; that defendant kept a watchman at said crossing to warn travelers on the street of approaching trains or locomotives; that as plaintiff approached the crossing he discovered a locomotive and train of cars to the west of the crossing on defendant's railroad, but could not see whether or not it was approaching the crossing, and stopped his automobileand looked and listened to determine whether it was safe to cross at that time; that the flagman then motioned for plaintiff to drive across the railroad track, and in obedience to such direction he started his automobile forward in low gear, and proceeded slowly until it reached the main track of defendant's railroad, when it stopped with the fore wheels of the automobile between the rails of the track, and plaintiff was unable to move it either forward or backward off the crossing; that while he was thus situated defendant's locomotive drawing the freight train was approaching slowly from the west, and the engineer and those in control of the train discovered and knew of said situation of plaintiff's automobile on the crossing, and discovered and knew of his inability to move it forward or backward off the crossing, and knew of said perilous situation in time to have stopped the train in its approach to the crossing and to have avoided contact with said automobile if the engineer and those in charge of the train had used diligence to stop it; but that after they had so discovered and knew of said condition, and of the perilous situation of the automobile, and of plaintiff's inability to remove it from the track, defendant's engineer and persons in charge of said locomotive and train of cars negligently ran the same against, upon, and over the automobile, and thereby destroyed it; that said automobile was of the value of $1,000 and was the property of plaintiff, and he was thereby damaged, etc. The third paragraph of the complaint alleged substantially the same facts as to the manner in which the automobile was driven to and stalled upon the track, and was struck and destroyed by defendant's locomotive and train and as to its ownership and value; but instead of alleging that the engineer and persons in charge of the locomotive and train saw...
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