Fort Wayne & Wabash Valley Traction v. Roudebush
| Decision Date | 04 June 1909 |
| Docket Number | 21,215 |
| Citation | 88 N.E. 676,173 Ind. 57 |
| Parties | Fort Wayne and Wabash Valley Traction Company v. Roudebush, Administratrix |
| Court | Indiana Supreme Court |
Rehearing Denied, October 15, 1909, Reported at: 173 Ind. 57 at 66.
From Superior Court of Tippecanoe County; Jere West, Special Judge.
Action by Atlanta Roudebush, as administratrix of the estate of Charles Roudebush, deceased, against the Fort Wayne and Wabash Valley Traction Company. From a judgment on a verdict for plaintiff for $ 8,000, defendant appeals.
Affirmed.
Kumler & Gaylord, for appellant.
Addison C. Harris and Charles E. Thompson, for appellee.
Appellant prosecutes this appeal from a judgment of $ 8,000 recovered by appellee as administratrix of the estate of Charles Roudebush, deceased, for the death of said decedent on account of the alleged wrongful act of appellant.
The errors assigned are: (1) Overruling appellant's demurrer to the complaint; (2) overruling appellant's motion for judgment in its favor on the answers of the jury to interrogatories, notwithstanding the general verdict; (3) overruling appellant's motion for a new trial.
The condensed allegations of the complaint, omitting formal matters, are, in substance, as follows: That appellant is a corporation, and on May 23, 1906, was engaged in operating a single track electric interurban railroad seven miles in length between the city of LaFayette and Battle Ground; that on and before said date it had in use two large and heavy passenger-cars known as No. 24 and No. 251, capable of making a speed of forty miles per hour, and which were usually run between said stations at a speed from twenty to thirty miles per hour; that Charles Roudebush was in appellant's employ as motorman, sometimes operating one, and sometimes the other of said cars; that when not in use said cars were kept in a barn in the city of LaFayette, and on some days only one of said cars was in use, and on other days both were in service, each making hourly round trips; that on days when both of said cars were to be used it was the practice that the first car should leave the public square in said city at 6 o'clock a. m. and return at 7 o'clock a. m., and have a clear track, and the second car should not be put on until 7:30 o'clock a. m., and thereafter while both cars were in operation they would pass at a certain siding some distance south of the midway point on said line, and the south-bound car should have the right of way; that no telegraph or telephone system, or any other means, was provided for communicating between the offices and employes operating said cars when away from terminal points; that on May 23, 1906, Roudebush was, by appellant, required to appear at 6 o'clock a. m., and take out said car No. 24 and to leave the public square at said hour; that he made the run to Battle Ground in thirty minutes, and, in accordance with the rules, regulations and directions of appellant, was making the return trip so as to arrive at the public square at 7 o'clock a. m., when, through the negligence and wrongful conduct of appellant and its officers and agents in charge of the operation of said road, a collision was brought about between said cars in the following manner: Appellant, through its said officers and agents, and contrary to its usual practice and custom, caused said car No. 251 to leave the public square at 6:38 o'clock a. m. to make the run to Battle Ground; that said car leaving at that time could not arrive at the passing switch before the south-bound car would pass the same, as appellant and its said officers and agents then and there well knew; that a short distance south of said passing switch the main track makes a sharp curve, on the inside of which, adjoining and close to the track, there were, and always had been, thick clumps of bushes, vines, briers, trees and undergrowth, so as to shut off the view across said curve, as appellant and its said officers and agents well knew; that on said date these bushes, vines and trees were in full leaf, and on that account it was impossible for Roudebush, in the vestibule of his car coming southward around said curve, to see a car approaching from the opposite direction in time to avoid a collision; that appellant and its said officers and agents knowing said facts, and that Roudebush had the right of way, and that running at the usual speed said cars would naturally meet at or about said curve and cause a collision, permitted said car No. 251 to leave the public square, and gave no order or direction to the motorman or conductor on car No. 251 to take another switch immediately south of said curve; that while said Roudebush was at his post of duty, and while rounding said curve at the usual speed and without previous knowledge or warning, he discovered said car No. 251 approaching from the south; that he reversed the power and applied the brakes instantly, but was unable to avoid a collision; that said cars collided with great force, and thereby inflicted wounds and injuries upon said Roudebush from which he died on the same day; that his death was caused by the wrongful acts and omissions of appellant as aforesaid, and by and through the carelessness and negligence of its said officers and agents, and not otherwise.
The demurrer concedes the truth of all facts properly pleaded, and conceding the truth of the allegations of this complaint a cause of action is stated. It is made to appear that when two cars were in operation over the track described, the first one sent out ordinarily made one round trip before the other was started; that the second car left the public square in the city at 7:30 o'clock, at which time the first car left the other end of the line at Battle Ground, and the passing point was switch No. 54, the south-bound car having the right of way; that a second car was started on the morning of the accident at 6:38 o'clock, contrary to the usual custom, and without the knowledge of those in charge of the car at the other end of the line, and without any means of advising them of the fact; that this car was started by appellant eight minutes after the time the south-bound car should have left the north terminus, consequently sufficient time to reach the usual passing point was not allowed; that no orders or directions were given for it to take an intermediate siding, with knowledge on the part of appellant's officers in charge that the cars would, in the usual course of events, meet at a dangerous curve in the road. The complaint states a cause of action. Louisville, etc., R. Co. v. Heck (1898), 151 Ind. 292, 50 N.E. 988; Slater v. Jewett (1881), 85 N.Y. 61, 39 Am. Rep. 627; 3 Elliott, Railroads (2d ed.), § 1281.
It is not deemed necessary nor expedient to set forth at length the interrogatories and answers upon which appellant contends that judgment in its favor should have been rendered. These answers in no material respect conflict with the general verdict. It appears from these answers that car No. 251 left the public square at 6:37 o'clock a. m and, running at the usual rate of speed, would have reached the point where the collision occurred at 6:49 o'clock a. m., and that the collision actually occurred at 6:44 o'clock a. m., or five minutes before the north-bound car should have been expected to arrive at the curve described. Appellant's counsel base their insistence, that the verdict should be overthrown, upon this discrepancy in time. It is found that under the usual custom car No. 251 would not have been started until 7:30 o'clock a. m., and by the special bulletin issued it should have left the public square at 6:30 o'clock, but in fact, started seven minutes late, with the knowledge of appellant, and without the knowledge of the deceased, and without any means of notifying him of any directions as to a meeting point. The decedent, with his car, was entitled to a clear track, and car No. 251 was run upon the main track against his time. Appellant was thus shown to be guilty of negligence as charged, in creating and permitting such conditions, and in failing to give...
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