Grand Trunk Western Ry. Co. v. Cather, 13123.
| Decision Date | 26 June 1929 |
| Docket Number | No. 13123.,13123. |
| Parties | GRAND TRUNK WESTERN RY. CO. v. CATHER. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from Superior Court, St. Joseph County; O. R. Deahl, Judge.
Action by Doris Cather, by her next friend, against the Grand Trunk Western Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.
Superseding former opinion in 163 N. E. 622.
Parker, Crabill, Crumpacker & May, of South Bend, for appellant.
Samuel Feiwell and Seebirt, Oare & Omacht, all of South Bend, for appellee.
This is an action by Doris Cather against the Grand Trunk Western Railway Company for personal injuries occasioned by reason of a collision between an automobile in which the plaintiff was riding and a locomotive of appellant, at the point where the railroad tracks cross Olive street in the city of South Bend. There was a verdict and judgment in favor of the plaintiff for $3,000. The defendant has appealed and assigned as error the overruling of its motion for a new trial.
The complaint charges that appellant's tracks, at the point where they cross the street, ran in a northeasterly direction; that Olive street is a north and south street; that on August 8, 1926, while appellee, as the guest of the driver, was riding in an automobile going south, one of appellant's trains collided with the automobile and injured her; that as the automobile approached the railroad crossing a number of box cars were standing on the tracks, both east and west of the street; that, as plaintiff approached the crossing, the automobile was stopped and both the driver and appellee looked and listened for approaching trains; that, after the automobile was stopped, plaintiff noticed a switch engine that was being operated on one of the many tracks crossing the street; that, as the switch engine passed over the crossing, plaintiff and the driver of the automobile again looked and listened for approaching trains; that they neither saw nor heard an approaching train and proceeded to cross the railroad; that, as they got on one of the tracks, the automobile in which she was riding was struck by one of appellant's trains, which was being negligently operated at a high and dangerous rate of speed, 40 miles an hour, in violation of an ordinance of the city which provided that no train should be run in the city limits at a greater speed than 8 miles an hour, and that the bell on the engine should ring while the engine was in motion; that there was no flagman at the crossing to warn travelers of approaching trains, and that the bell and whistle were not sounded, and no warning of the approaching train was given; and that, by reason of the collision, she was injured.
Appellant contends: (1) That the verdict is not sustained by sufficient evidence; (2) that it is contrary to law; (3) that the court erred in giving certain instructions; and (4) that the court erred in refusing to give an instruction.
William E. Watson, the driver of the automobile, on direct examination, testified: That he was a postal clerk; took appellee to a dance; danced until 11:30 p. m., then started home; came to Olive street, turned south toward railroad tracks; when he came to the first track he stopped and looked both ways; neither saw nor heard any trains; noticed a switch engine working on the south side of tracks; waited until it had practically cleared the tracks; looked again and then proceeded to cross; had gone about 60 feet, when hit by a train; was driving Ford sedan; heard no whistle; noticed the signals, but they were not in operation; first saw the train when it was about 8 feet from the automobile; was traveling in low gear; Miss Cather was riding on the right-hand side, and in the collision the automobile was turned around; did not find Miss Cather right away; heard her groan; saw her down the tracks 50 or 60 feet east of automobile; got to her as quickly as possible; did not have strength to pick her up; she was taken to the hospital with the aid of another car that came along; she was not able to walk; Dr. Acker was called; after the accident the car was about 25 to 30 feet east from where it was struck.
On cross-examination he testified: That the brakes were in good condition; the sides of the car were fitted with glass; knew the road; had been over it a few times; Olive street ran north and south and is paved; “the train was coming from the southwest; stopped north of the first track we came to, and did not stop after that; moved along slowly and steadily until we were struck; Miss Cather did not say anything to me about a train coming;” had no warning of a train approaching until just the instant of the crash; the only thing noticed was the engine; stopped and watched the switch engine, thinking it might cross the track; it was south of the Grand Trunk tracks, and backing west; it was south of the track on which the crash occurred, and was east of Olive street; “we were not talking; there were some box cars west of Olive street not far from the street; Miss Cather had been over this crossing with me several times before;” should say about three times; saw engine when it was about 8 feet away from automobile; was looking that way; saw headlight; don't remember hearing it; drove a Ford automobile off and on for 8 years prior to the accident; “the brakes were in good shape and at the speed I was driving at the time of the accident could have stopped the automobile in 3 feet and avoided the accident at any time before the front wheels were on the track the train was on, if had seen the train approaching; the switch engine came from the east as if it were going across the track; it came up to Olive street, then it went back a little way; when it went east we started across the track; my eyesight and hearing are both good.”
Appellee testified on direct examination: That she lived in Mishawaka, was 21 years old January 21, 1927; had been stenographer for South Bend Watch Company for 5 months; on the night in question went to a dance with William Watson at Hudson Lake, in a Ford sedan; Watson did the driving; reached Hudson Lake at 9:30 p. m.; “danced until 11:30 p. m. when we started home; stopped when we reached the tracks; both Watson and I looked east and west; saw a switch engine working back and forth east of us;” it came from east; waited until it went back east and then started to cross the tracks; heard no bell or whistle; the only thing remembered after starting up was there was an accident and witness taken to the hospital.
On cross-examination she testified that she and Watson had driven over the crossing in question on several occasions; did not see the train until it struck them; “he must have screamed just as it hit us; after we stopped the automobile north of the tracks and started to cross she did not talk to Watson; we looked up and down the track, when we were standing still and while we were moving;” saw some box cars standing near the crossing; don't know how many; “stopped before we came to the track the cars were on;” then moved steadily at a moderate speed until the accident; she was sitting in the front seat on the right-hand side; there was glass in the door; it was shortly after midnight when the accident happened; did not see the engine that struck her.
It was stipulated that the engine and train in question were property of the defendant railroad company and were traveling in an easterly direction on the east-bound main track; that the west-bound main track was north of the east-bound main track a distance of 15 feet from the center to the center of the tracks; that north of the west-bound main track was the passing track, at a distance of 15 feet, center to center, from the west-bound main track, that north of the passing track was a track called the new track; that the south rail of the long track was 60 feet, 7 inches north of the north rail of the eastbound main track; that north of the long track was the track of the New Jersey, Indiana & Illinois Railway Company, which was the farthest north of any track in the vicinity; that the New Jersey track was not less than 15 feet, center to center, north of the long track; that the box cars mentioned were located on the long track; that the coal dock of the defendant is 819 feet west of the west line of Olive street; that the toolhouse of the defendant shown on photograph marked Exhibit C is located 75 feet west of Olive street; that Olive street is a public street not less than 50 feet wide and paved for 20 feet of its width; that the New York Central Railroad Company owns four tracks crossing Olive street, south of the tracks of appellant; south of the east-bound main track is another track of appellant known as the lead track that leads from the Grand Trunk tracks to the New York Central tracks; that it is 22 feet 9 inches from the north rail of the east-bound main track to the south rail of the passing track; that there was in effect, in the city of South Bend, an ordinance which provided that no railroad company should run a locomotive or train within the limits of South Bend at a greater speed than 8 miles per hour, and that all engines should signal by ringing the bell; that there was also in effect an ordinance requiring the railroad companies to maintain at Olive street, where their tracks cross, manual flash lights, which were operated from a tower, between 6 o'clock p. m. and midnight of each day, but not requiring their operation between midnight and 6 o'clock a. m.; that the accident in question occurred at 12:30 o'clock a. m., and the flash lights were not then in operation.
M. M. Howie, yardmaster, testified that the long track is the north track of appellant and that the New Jersey track is north of it; that there were six or seven refrigerator cars, the east end of them being about 60 feet away from the line of Olive street; that they had not been moved during the night.
E. L. Merrill, claim agent, testified...
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