Evansville & Terre Haute Railway Company v. Berndt
| Decision Date | 02 June 1909 |
| Docket Number | 21,251 |
| Citation | 88 N.E. 612,172 Ind. 697 |
| Parties | Evansville and Terre Haute Railway Company v. Berndt, Administrator |
| Court | Indiana Supreme Court |
Rehearing Denied October 8, 1909.
From Posey Circuit Court; O. M. Welborn, Judge.
Action by Henry W. Berndt, as administrator of the estate of Charles C. Berndt, deceased, against the Evansville and Terre Haute Railway Company. From a judgment for plaintiff, defendant appeals.
Affirmed.
John E Iglehart, Edwin Taylor, E. H. Iglehart and G. V. Menzies, for appellant.
Edgar Durre, Edward A. Lorch and F. E. Monfort, for appellee.
Appellee recovered a judgment for $ 7,166 against appellant for causing the death of Charles C. Berndt at a grade crossing in the city of Evansville. Errors have been assigned upon the overruling of (1) appellant's demurrer to the complaint, and (2) its motion for a new trial.
The complaint alleged, in substance, that William street in the city of Evansville was used constantly by the public for travel and traffic at a point where it was crossed by a number of appellant's tracks, and that a certain ordinance of the city required appellant to maintain automatic safety gates on each side of its tracks at said street crossing, and to operate the same so as to afford persons using the street full and complete protection against injury, and to cause the same to be operated by skilful operators, whose duty it was to warn persons approaching the crossing of danger, and to notify them when it was safe to cross the tracks; that on November 30, 1906, appellant maintained, and for a number of years prior thereto had maintained, such gates, and placed the same in charge of a watchman, whose duty it was to close the gates when a train or engine was approaching the crossing, and to open and keep the gates open when there was no danger from approaching trains or engines; that on said date, between the hours of 7 and 8 o'clock p. m., Charles C. Berndt, walking along William street, approached said crossing, and found said gates open and an unobstructed passage over said tracks; that, relying upon appellant's duty in regard to said gates, and believing the open gates were meant to and did indicate that no train or engine was approaching, and that it was safe to pass over the tracks, he proceeded with due care and caution upon the tracks; that thereupon, without regard to his rights, and in violation of the provisions of said ordinance, and without closing said gates or giving any warning or signal, appellant carelessly and negligently ran an engine upon and against said Berndt, knocking him down and injuring him in such manner as to cause his death upon the following day.
The act of 1899 (Acts 1899, p. 58, § 362 Burns 1908) changed the rule of pleading and proof with respect to contributory negligence in the class of cases to which this belongs, and imposed the burden of alleging and proving such negligence upon defendants. Appellant's learned counsel insist that in grade-crossing cases a complainant, notwithstanding the statute, must aver and prove freedom from contributory fault, and that this complaint is insufficient because no facts are therein disclosed to excuse the decedent from the exercise of that degree of care and caution which it is claimed the law exacts of a traveler at a railroad crossing. This contention is untenable. The argument is founded on the claim that the law presumes a person injured at a grade crossing to have been guilty of contributory negligence. Issues joined upon the subject of negligence are to be determined ordinarily as other facts, upon all the evidence and circumstances of the particular case, and in considering the sufficiency of both pleadings and proof it is only where, upon a given state of facts, reasonably fair minds cannot honestly differ in their conclusions that the question will be determined as a matter of law. Pittsburgh, etc., R. Co. v. Seivers (1904), 162 Ind. 234, 67 N.E. 680; Stoy v. Louisville, etc., R. Co. (1903), 160 Ind. 144, 66 N.E. 615; Malott v. Hawkins (1902), 159 Ind. 127, 63 N.E. 308; Young v. Citizens' St. R. Co. (1897), 148 Ind. 54, 44 N.E. 927; Shoner v. Pennsylvania Co. (1892), 130 Ind. 170, 177, 28 N.E. 616; Mann v. Belt R., etc., Co. (1891), 128 Ind. 138, 26 N.E. 819; Baltimore, etc., R. Co. v. Walborn (1891), 127 Ind. 142, 26 N.E. 207; Rogers v. Leyden (1891), 127 Ind. 50, 26 N.E. 210.
The rights of the railroad company and the public to the use of highway crossings are equal, except that the company is entitled to precedence in passing upon giving due notice of its desire and purpose so to do. A casualty resulting in the personal injury or death of a traveler from contact with cars at such place is necessarily occasioned by the concurrent acts of two parties, and in actions therefor, by their pleadings each in terms or legal effect charges the other with negligence contributing to the result. In such actions neither party has a prima facie cause of action or defense, unless it be shown that the proximate cause of the injury was the violation of a statute or municipal ordinance, and otherwise the court cannot indulge a presumption of law that the implicated act or omission of either party was prudent and cautious or negligent and wrongful, but the inference of negligence or its absence is an ultimate fact to be determined by the trial court or jury. City of Indianapolis v. Keeley (1906), 167 Ind. 516, 79 N.E. 499, and cases cited; Southern Ind. R. Co. v. Peyton (1902), 157 Ind. 690, 61 N.E. 722.
Contributory negligence, when apparent either from the pleadings or proof, will bar a recovery, but since the act of 1899, supra, it is wholly a matter of defense, and a complainant is not required to allege his own freedom from fault, but a complaint will be good in that respect, unless the fact of contributory negligence affirmatively appears on the face of the pleading. It is not contended that any facts are disclosed upon the face of appellee's complaint to warrant an inference that the decedent was remiss in the exercise of vigilance for his safety, but, on the contrary, the complaint expressly avers that he was proceeding with due care and caution at the time he was struck and injured. The complaint was clearly sufficient in this regard to withstand appellant's demurrer. Cleveland, etc., R. Co. v. Lynn (1909), 171 Ind. 589, 85 N.E. 999; City of Indianapolis v. Keeley, supra; Stoy v. Louisville, etc., R. Co. (1903), 160 Ind. 144, 66 N.E. 615; Southern Ind. R. Co. v. Peyton, supra.
Appellant's counsel urge as errors requiring the granting of a new trial, that the court gave certain erroneous instructions, and refused others properly requested, and that the verdict is not sustained by sufficient evidence and is contrary to law.
Complaint is made of instruction one, given at the request of appellee, which advised the jury that if it was the custom of appellant to close its gates at the William street crossing when an engine or train or cars approached, and decedent was familiar with that custom, and when he approached he found the gates open and no warning was given that it was unsafe to cross, he had a right to presume no locomotive or train was approaching and that it was safe to cross appellant's tracks. This instruction, so far as it goes, embodies a declaration of law approved by this court, and was not erroneous. Pennsylvania Co. v. Stegemeier (1889), 118 Ind. 305, 10 Am. St. 136, 20 N.E. 843; Indianapolis Union R. Co. v. Neubacher (1896), 16 Ind.App. 21, 43 N.E. 576; Cleveland, etc., R. Co. v. Schneider (1888), 45 Ohio St. 678, 17 N.E. 321; Lindeman v. New York, etc., R. Co. (1887), 11 N.Y. 837; Fitzgerald v. Long Island R. Co. (1887), 10 N.Y. 433; 2 Wood, Railway Law, 1328.
The third instruction was similar in substance, with the additional statement, that in such circumstances the open gates were an affirmative assurance that there was no danger, upon which the traveler by exercising ordinary care might act without being chargeable with negligence. This instruction is supported by the authorities, and was not erroneous. Nichols v. Baltimore, etc., R. Co. (1904), 33 Ind.App. 229, 70 N.E. 183; Central Trust Co. v. Wabash, etc., R. Co. (1886), 27 F. 159; Delaware, etc., Co. v. Larnard (1908), 161 F. 520, 88 C. C. A. 462; Schulte v. Louisville, etc., R. Co. (1908), 128 Ky. 627, 108 S.W. 941.
Instruction five declared that the burden of proving contributory negligence was upon appellant, but if decedent's contributory negligence affirmatively appeared from the evidence it was immaterial upon whom the burden of proof rested, since in that event appellee could not recover. This instruction was intended for appellant's benefit, and is not essentially different in effect from instructions upon the subject of proving contributory negligence heretofore approved. Pittsburgh, etc., R. Co. v. Collins (1907), 168 Ind. 467, 80 N.E. 415; City of Indianapolis v. Keeley (1906), 167 Ind. 516, 79 N.E. 499; Town of Winamac v. Stout (1905), 165 Ind. 365, 75 N.E. 158; M. S. Huey Co. v. Johnston (1905), 164 Ind. 489, 73 N.E. 996.
Instructions three, seven, eight, nine and ten, tendered by appellant were refused. They were in part covered by other instructions, and to some extent in conflict with proper instructions given, and as to some propositions there was no evidence making the same relevant. It is our conclusion, without extended discussion, that no error was committed in the refusal to give these...
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