Engle v. Cleveland, Cincinnati, Chicago And St. Louis Railway Company
| Decision Date | 25 November 1925 |
| Docket Number | 24,372 |
| Citation | 149 N.E. 643,197 Ind. 263 |
| Parties | Engle v. Cleveland, Cincinnati, Chicago and St. Louis Railway Company |
| Court | Indiana Supreme Court |
Rehearing Denied February 16, 1926.
1. RAILROADS.---Instructions that if defendant's servants by the exercise of ordinary diligence, "could have discovered" plaintiff's plight in time to have avoided injury, defendant would be liable under doctrine of "last clear chance" were incorrect and properly refused.---In an action for damages for the destruction of plaintiff's automobile by defendant's train at a crossing, instructions that if the defendant's engineer or flagman, "by the exercise of ordinary diligence could have discovered" plaintiff's plight (automobile stalled on the crossing) and "could have known" that plaintiff was unable to get it off the crossing out of the way of the approaching train in time to have stopped the train, then defendant was liable under the doctrine of "last clear chance" regardless of the contributory negligence of the plaintiff, were incorrect and properly refused. p. 269.
2. NEGLIGENCE.---In this state, actual knowledge is necessary to bring a case within the doctrine of "last clear chance," and the fact that, by the exercise of diligence, the injured party's peril might have been discovered will not bring the case within that doctrine.---The rule is firmly established in this state that actual knowledge is necessary to bring a case within the doctrine of "last clear chance," and the mere fact that, by the use of ordinary diligence, the peril of the injured party might have been known to the one who inflicted the injury does not bring a case within that doctrine. p 269.
3. NEGLIGENCE.---In action for damages to property resulting from defendant's negligence which is not within doctrine of "last clear chance," plaintiff must allege and prove freedom from contributory negligence.---In an action for damages to property by reason of the negligence of the defendant which was not within the doctrine of "last clear chance," the plaintiff must allege and prove his freedom from contributory negligence. p. 269.
4. RAILROADS.---Instruction as to plaintiff's accountability in an emergency when automobile stalled on tracks at a crossing and train approaching held properly refused.---In an action for damages to an automobile struck by a train at a crossing, an instruction that, if plaintiff, without his own fault or negligence, was on the railroad track with his automobile in danger from an approaching train, he "would not be held to strict accountability for his conduct and action in attempting to extricate such automobile" was properly refused, as it would not aid the jury in applying the law to the facts. p. 271.
5. APPEAL.---Judgment will not be reversed for error in instructions when it affirmatively appears that appellant was not prejudiced thereby.---A judgment will not be reversed because of instructions given when it affirmatively appears that they did not prejudice the rights of appellant. p. 271.
From the Delaware Circuit Court; W. A. Thompson, Judge.
Action by James S. Engle against the Cleveland, Cincinnati, Chicago and St. Louis Railway Company. From a judgment for defendant, the plaintiff appeals.
Affirmed.
W. G. Parry, Leffler & Ball and F. S. Caldwell, for appellant.
Frank L. Littleton, Bales & Macy and Orr & Clark, 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, Indiana, 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 thirty-seven 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 fifty-seven interrogatories. Overruling the motion for a new trial is assigned as error, under which, appellant specifies 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 twelve 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 Indiana, 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 automobile and 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...
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Engle v. Cleveland, C., C. & St. L. Ry. Co.
... ... Engle against the Cleveland, Cincinnati, Chicago & St. Louis Railway Company. From a judgment for ... ...