Grand Trunk Western Railway Co. v. Reynolds
| Decision Date | 27 October 1910 |
| Docket Number | 21,767 |
| Citation | 92 N.E. 733,175 Ind. 161 |
| Parties | Grand Trunk Western Railway Company v. Reynolds, Administratrix |
| Court | Indiana Supreme Court |
Rehearing Denied February 2, 1911, Reported at: 175 Ind. 161 at 174.
From Porter Circuit Court; W. C. McMahan, Judge.
Action by Charlotte Reynolds, as administratrix of the estate of William Reynolds, deceased, against the Grand Trunk Western Railway Company. From a judgment on a verdict for plaintiff for $ 3,500, defendant appeals. Transferred from Appellate Court under § 1394 Burns 1908, subd. 2, Acts 1901 p 565, § 10.
Affirmed.
Johnston & Bartholomew and Kretzinger, Rooney & Kretzinger for appellant.
Grant Crumpacker and William Daly, for appellee.
This is an appeal from a judgment awarding damages to appellee for the alleged negligent killing of her decedent at a highway crossing over appellant's railway.
The errors relied on are, overruling the motion for judgment upon the answers to the interrogatories, and overruling the motion for a new trial.
The pertinent portions of the complaint, necessary to an understanding of the ruling on the motion for judgment upon the answers to the interrogatories are, that the railroad crossed a highway at right angles; that at the point of crossing, and for a long distance east, the railroad runs through a deep cut, and a train approaching the highway from the east could not be seen by a traveler coming from the north until he got upon the track; that banks twenty-five to thirty feet high lay along the cut of said road for a distance of one and one-half miles east, and obstructed any view of trains; that the track from one mile east of the crossing to some distance west thereof was down grade; that while decedent was approaching the railroad crossing from the north, in a light wagon drawn by one horse, a locomotive on defendant's road was approaching the crossing from the east; that defendant negligently failed to ring the bell or blow the whistle, when within a distance of one hundred twenty rods of said crossing, and negligently ran said locomotive at a high and dangerous rate of speed, viz., ninety miles an hour; that the train was running in a cut and made little noise; that decedent was unable to see, and did not see nor hear the train, and had no knowledge or the approach thereof until it was too late to avoid a collision; that his vehicle was struck by the locomotive, and the horse and decedent were then and there and thereby instantly killed; that decedent was so killed on the highway at the crossing of defendant's track, while he was lawfully on said highway; that he did not discover and could not have discovered the approach of said locomotive in time to avoid the collision; that had the bell been rung and the whistle blown within a distance of one hundred twenty rods of the crossing, decedent could and would have heard it and would have avoided the injury.
The interrogatories and the answers thereto show that the accident occurred at 8:35 o'clock p. m., October 7; that the right of way was 100 feet wide, with a single track in the center, crossing the highway at right angles on a level; that the engine was equipped with the ordinary headlight, ten feet nine and one-half inches above the track; that said headlight was lighted; that decedent at the time of the accident was in a covered wagon, with side curtains extending to the front line of the seat; that the horse was gentle and easily managed; that decedent was accustomed to driving; that the night was clear, and there was no wind; that decedent's hearing and eyesight were good; that he could read; that there was a sign "Railroad Crossing" in big letters at the crossing; that decedent was thirty-nine years old; that if decedent in approaching the crossing on this occasion, at a point in the highway forty-seven feet north of the track, had looked east, he could have seen the headlight of the engine for a distance of eighty rods, and thence continuously as he approached the crossing he could have seen it for that distance or more; that the track was on a straight line 1,200 feet east from the crossing; that the danger-signal was sounded six or eight rods from the crossing; that decedent's horse was then ten or twelve feet from the track; that no whistle was sounded or bell rung for the crossing; that it was not light enough for persons passing decedent to see him; that the track enters a cut ten rods east of the highway crossing; that twenty-five rods north of the track decedent could not have seen the approaching train or the headlight; that he could not have seen the headlight when he was within one hundred feet north of the track, nor could he have heard the noise of the train a distance of eighty rods; that the train consisted of an engine, tender and caboose, and was running down a grade of fifty-two feet to the mile, at a speed of fifty miles an hour; that as he approached the crossing he looked and listened for an approaching train; that if he had looked from a point 100 feet north of the crossing he could not have seen the headlight or the approaching train 627 feet away; that the highway for 400 feet north of the crossing is about the same elevation as at the crossing, and that there was nothing to obstruct the view of the approaching train, except the elevation on the side of the track. The depth of the cut is not stated.
The interrogatories and answers do not disclose whether appellee's decedent knew of the existence of the railway crossing at that point, or where the signpost was located; nor do they disclose whether he could see such post.
Under these facts, appellant urges that the interrogatories and answers prove that the injury was the result of decedent's want of care. It is the duty of one approaching a highway crossing to look and listen; and, if necessary to see and hear, it is his duty to stop. But the jury found the conditions surrounding the crossing; that the statutory signals were not given; that decedent could not have heard the noise of the train a distance of eighty rods; that at a point twenty-five rods north of the crossing he could not have seen the train 462 feet from the crossing; that at a point 100 feet from the crossing he could not have seen the headlight or the train over 627 feet; that forty-seven feet north of the track he could have seen the headlight eighty rods; that when the train was running fifty miles an hour and decedent was traveling three miles an hour the train would run seventy-three and thirty-three one-hundredths feet a second, and decedent would travel four and four-tenths feet; that the track was straight for a distance of 1,200 feet, implying a curve beyond that point; that from the time he got within forty-seven feet of the crossing, when the headlight could be seen, he could not see farther than the train would move in less than eighteen seconds; that if he had passed the point where the train came into view, and possibly within hearing, he was practically upon the track, or in such situation that, without the signals to warn him, he could not escape either by going forward or by stopping; that with a locomotive, tender and caboose, running down a grade of fifty-two feet to the mile, the locomotive would necessarily not be laboring, and comparatively little noise would be made.
Sound travels differently in different media or states of the atmosphere, and is affected by obstructions, and while it is said to travel 1,090 feet each second, whether the conditions were such that the sound would travel in the direction of decedent, so as to give warning of an approaching train, we cannot know. It may have been that the conditions for hearing were no better than for seeing, and, so far as this motion is concerned, there may have been evidence from which the jury was warranted in finding, as it did by the general verdict, that decedent exercised ordinary care, under all the circumstances disclosed by the evidence, and the answers to the interrogatories are not aided by inference or presumptions. Southern R. Co. v. DePauw (1910), 174 Ind. 608, 92 N.E. 225.
The jury found that in approaching the crossing decedent looked and listened, implying knowledge of the existence of the crossing, and this finding, for the purposes of this motion, considered with the general verdict, must be taken to mean that he looked and listened from a position where looking and listening would be of avail, and we cannot assume, as against the general verdict, that he could have seen or heard the coming train. From the finding that the headlight of an approaching train would have been visible, with the finding that he looked and listened, there might arise an inference that he knew the train was coming. But other inferences might reasonably arise, such as that it was a switch light, or something other than the headlight of an approaching train. Or, put in another form, seeing a light might lead to an inference of a coming train, but is not conclusive, and might present but a slight inference, if no signals were given, or none heard. For us to infer that he knew, or was bound to know, that it was the headlight of an approaching train, would require us, irrespective of all conditions which may have been disclosed by the evidence, to say that he must have seen or heard, or was bound to see and hear, in time to stop or to pass to safety. He may not have been familiar with the crossing, or not have been aware of its presence, and the conditions may have been such that he could hear neither the crossing signal nor the noise of the train.
The complaint alleges the existence of banks twenty to thirty feet high along the cut of the railway for a distance of one and one-half miles east of the crossing, which cut off any...
To continue reading
Request your trial