Engle v. Director General of Railroads

• Decision Date: 07 December 1921
• Docket Number: 11,308
• Citation: 133 N.E. 138,78 Ind.App. 547
• Parties: ENGLE, ADMINISTRATOR, v. DIRECTOR GENERAL OF RAILROADS
• Court: Indiana Appellate Court

133 N.E. 138

78 Ind.App. 547

ENGLE, ADMINISTRATOR, v. DIRECTOR GENERAL OF RAILROADS

No. 11,308

Court of Appeals of Indiana

December 7, 1921

Rehearing denied March 17, 1922.

Transfer denied October 5, 1922.

From Tippecanoe Superior Court; Henry H. Vinton, Judge.

Action by Robert R. Engle, administrator of the estate of Margaret Malinda Engle, deceased, against the Director General of Railroads. From a judgment for defendant, the plaintiff appeals.

Affirmed.

Frank Kimmel, Edgar D. Randolph and Charles R. Milford, for appellant.

C. C Hine and Alfred Evens, for appellee.

OPINION

BATMAN, P. J.

Action by appellant against appellee to recover the damages sustained by the next of kin of the former's decedent, whose death it is alleged was caused by the following acts of negligence on the part of the latter, in maintaining its road bed and equipment, and in operating a certain train over the same, on which appellant's decedent was a passenger: (1) Said train was operated at too great a rate of speed, considering the location and the danger of it leaving the main track and entering the side track. (2) The engineer in charge of the locomotive attached to the train failed to keep a proper lookout. (3) Worn and rusted appliances were used to hold the main track and side track in place. (5) There was a failure to maintain the ground, rails, ties and spikes in a proper condition. There was originally a fourth specification of negligence, but it was withdrawn by appellant. After issues were joined the cause was submitted to a jury for trial, and at the conclusion of the evidence, the court instructed the jury to return a verdict in favor of appellee, which was accordingly done, and a judgment duly rendered thereon. Appellant filed a motion for a new trial, which was overruled, and this appeal followed.

The action of the court in giving the jury a peremptory instruction to return a verdict in favor of appellee is made the basis of the only question presented for our determination. The giving of this instruction cannot be upheld unless we are able to say that the evidence is clearly insufficient to establish one or more facts essential to appellant's right of recovery. One of such facts is, that one or more of the acts of negligence charged was the proximate cause of the injuries alleged. The undisputed evidence shows that the train on which appellant's decedent was a passenger, at the time of the accident in question, was going in a southerly direction over appellee's track in the town of Monon at about noon; that when it reached Fifth street in said town it struck an automobile and threw it against a switch stand, located a little to the south of the street, and thereby turned the track to such an extent that the train ran off the main track onto a switch track, and struck a cut of cars standing thereon, resulting in appellant's decedent being thrown from the seat in which she was riding, and being severely injured. These facts being undisputed, and of such a character that only a single inference can be drawn therefrom by any fair and reasonable mind, the question as to whether the acts of negligence alleged, if proved, were the proximate cause of the injuries of appellant's decedent is one of law for the court. Chicago, etc., R. Co. v. Mitchell (1914), 56 Ind.App. 354, 105 N.E. 396. It is obvious that a determination of this question will be decisive of this appeal.

Proximate cause has been given definitions, varying somewhat in form, but all containing a central idea, which is substantially the same. One approved by a comparatively recent decision of the Supreme court is as follows: "'Proximate cause is the act that immediately causes, or fails to prevent, an injury that might reasonably have been anticipated would result from the negligent act or omission charged, and without which such injury would not have occurred.'" Cincinnati, etc., R. Co. v. Armuth (1913), 180 Ind. 673, 103 N.E. 738. To the same effect are the following: City of Indianapolis v. Slider (1911), 48 Ind.App. 38, 95 N.E. 334; Terre Haute, etc., Traction Co. v. Hunter (1916), 62 Ind.App. 399, 111 N.E. 344.

In determining whether a given act of negligence is the proximate cause of an alleged injury, a question involving the existence and effect of an intervening responsible agency frequently arises. The undisputed facts in the instant case clearly show the presence of such an agency, which became a factor in causing the injuries to appellant's decedent. This being true, we need only consider the effect of such factor. This court has heretofore stated the rule in this regard to be as follows:

"Where there is an intervening, responsible agency, which directly produces the injury, as in this case, the question as to whether the original negligence is to be regarded as the proximate cause of the injury, or only as a condition, or remote cause, is to be determined by ascertaining whether the agency which intervened was of such a character, and the circumstances under which it occurred were such, that it might have been reasonably expected that such agency or a similar one would intervene in such a way as to be likely to produce an injury similar to the one actually caused. If, under the circumstances, the intervention of such an agency in the manner stated might reasonably have been expected in the usual course of events and according to common experience, then the chain of causation,...