Grand Trunk Western Ry. Co. v. Reynolds

• Decision Date: 27 October 1910
• Docket Number: No. 21,767.,21,767.
• Citation: 175 Ind. 161,92 N.E. 733
• Parties: GRAND TRUNK WESTERN RY. CO. v. REYNOLDS.
• Court: Indiana Supreme Court

175 Ind. 161

92 N.E. 733

GRAND TRUNK WESTERN RY. CO.

v.REYNOLDS.

No. 21,767.

Supreme Court of Indiana.

Oct. 27, 1910.

Appeal from Circuit Court, Porter County; W. C. McMahan, Judge.

Action by Charlotte Reynolds, administratrix, against the Grand Trunk Western Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

See, also, report in Appellate Court (90 N. E. 94), from which court the case was transferred.Johnston & Bartholomew and Kretzinger, Roony & Kretzinger, for appellant. Grant Crumpacker and William Daly, for appellee.

MYERS, J.

This is an appeal from a judgment awarding damages to appellee for the alleged negligent killing of her intestate at a highway crossing over appellant's railway.

The errors relied on here 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 upon 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 that 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 25 to 30 feet high lay along the cut of said road for a distance of 1 1/2 miles east, and cut off any view of trains; that the track from one mile east of the crossing to some distance west thereof was downgrade; 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, within a distance of 120 rods of said crossing, and negligently ran said locomotive at a high and dangerous rate of speed, viz., 90 miles an hour, and was running in a cut and made little noise; that decedent was unable to and did not see or hear the same, and had no knowledge or notice of the approach of the same until it was too late to avoid a collision, and the vehicle was struck by the locomotive, and the horse and decedent were then and there and thereby instantly killed; that he was so struck and killed on the highway at the crossing of defendant's track, and decedent was then lawfully on said highway; that decedent did not, and could not have, discovered the approach of said locomotive in time to have avoided the collision; that, had the bell been rung and whistle blown within a distance of 120 rods of the crossing, decedent could and would have heard the same, and avoided the injury. The interrogatories and answers show that the accident occurred at 8:35 p. m. October 7th. The right of way was 100 feet in width, with a single track in the center, crossing the highway at right angles on a level. The engine was equipped with the ordinary headlight lighted, 10 feet 9 1/2 inches above the track. Decedent at the time of the accident was in a covered wagon, with side curtains extending to the front line of the seat. The horse was gentle, and easily managed. Decedent was accustomed to driving. The night was clear, with no wind. Decedent's hearing and eyesight were good. He could read. There was a sign “Railroad Crossing” at the crossing in big letters. Decedent was 39 years old. If the decedent in approaching the crossing on this occasion had at a point in the highway 47 feet north of the track looked east, he could have seen the headlight of the engine for a distance of 80 rods, and thence continuously as he approached the crossing he could have seen it for that distance or more. The track was on a straight line 1,200 feet east from the crossing. The danger signal was sounded six or eight rods from the crossing. Decedent's horse was then 10 or 12 feet from the track. No whistle was blown or bell rung for the crossing. It was not light enough that persons passing the decedent could see him on the seat. The track enters a cut 10 rods east of the highway crossing. Twenty-five rods north of the track decedent could not have seen the approach of the train or the headlight 462 feet from the crossing. He could not have seen the headlight when he was 100 feet north of the track, nor could he have heard the noise of the train a distance of 80 rods. The train consisted of an engine, tender, and caboose, and was running down a grade of 52 feet to the mile at a speed of 50 miles per hour. As he approached the crossing, he looked and listened for an approaching train. If he had looked from a point 100 feet north of the crossing, he could not have seen the headlight or approaching train 627 feet. The highway for 400 feet north of the crossing is about the same elevation as at the crossing, and there was nothing to obstruct the view of the approaching train, except the elevation through which the track ran. The depth of the cut is not found. 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, or whether he could see it.

Under these facts appellant urges that the interrogatories and answers prove that the injury was the result of the 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 have found the conditions surrounding the crossing, and that the statutory signals were not given, and that the decedent could not hear the noise of the train a distance of 80 rods; that at a point 25 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 train to exceed 627 feet; that 47 feet north of the track he could have seen the headlight 80 rods; with a train running at 50 miles an hour and he traveling 3 miles an hour the train would run 73.33 feet a second, and the decedent would travel 4.4 feet; the track was straight for a distance of 1,200 feet, implying a curve beyond that point; until he got within 47 feet of the crossing, and from that time, and from the time the headlight could be seen, he could not see farther than the train would move in less than 18 seconds; if he was beyond the point where the train came into view, and possibly within hearing, he may practically have been 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; with a locomotive, tender, and caboose running down a grade of 52 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 per second, whether the conditions were such that the sound would travel in the direction of the 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 there may, so far as this motion is involved, have been evidence from which the jury were warranted in finding, as they did by the general verdict, that the decedent exercised ordinary care, under all the circumstances disclosed by the evidence, and the answers to the interrogatories are not aided by inferences or presumptions. Southern Ry. Co. v. De Pauw (1910) 92 N. E. 225.

The jury found that in approaching the crossing the decedent looked and listened, implying knowledge of the existence, or notice of the crossing, and this finding for the purposes of this motion, and 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, or must have, seen or heard the coming train. From the finding that he could see the headlight of an approaching train, with the finding that he looked and listened, there might arise an inference that he knew the train was there, but other inferences might reasonably arise, such as that it was a switch light, or some 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 the crossing signals could not be seen by him or the noise of the train heard. The complaint alleges the existence of banks 25 to 30 feet high along the cut of the railway for a distance of 1 1/2 miles east of the crossing which cut off any view of the train; that the train made little noise, and the decedent was unable to see or hear the train, and had no notice or knowledge of the approach of the train; and that he could not have discovered its approach in time to escape the collision. Whether these allegations were proven by the evidence was a question for the jury, and the answers to the interrogatories are not so antagonistic to the general verdict which covered all the elements essential to a recovery as to authorize a judgment for appellant.

We cannot supply by inference, presumption, or intendment so important a fact as that the decedent knew that the headlight was the headlight of an approaching train, when there is no fact found showing that the decedent knew the fact, or even that he should have...