Grand Trunk Western Ry. Co. v. Cather

• Decision Date: 15 November 1928
• Docket Number: No. 13123.,13123.
• Citation: 163 N.E. 622
• Parties: GRAND TRUNK WESTERN RY. CO. v. CATHER.
• Court: Indiana Appellate Court

163 N.E. 622

GRAND TRUNK WESTERN RY. CO.

v.CATHER.

No. 13123.^*

Appellate Court of Indiana, in Banc.

Nov. 15, 1928.

Appeal from Superior Court, No. 2, 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. Reversed.Parker, Crabill, Crumpacker & May, of South Bend, for appellant.

Samuel Feiwell and Seebirt, Oare & Omacht, all of South Bend, for appellee.

NICHOLS, C. J.

Action for damages because of personal injuries received by appellee in a collision between an automobile in which she was riding, with a locomotive of appellant, at the intersection of appellant's tracks with Olive street, near the western limits of the city of South Bend, between midnight and 1 o'clock a. m. on August 8, 1926.

To the complaint in one paragraph there was answer in denial. There was a trial by jury which resulted in a verdict that appellee recover of appellant $3,000. Judgment on the verdict. Appellant's motion for a new trial was overruled, and this appeal followed. The error relied on for reversal is that the court erred in overruling appellant's motion for new trial. The complaint charged in substance that appellant's tracks crossed Olive street in South Bend, and at the intersection the tracks ran in a northeast and southwesterly direction, and that Olive street ran north and south; that the angle of the crossing was about 45 degrees; that on August 8, 1926, appellee was riding in an automobile in a southerly direction on Olive street, as a guest of the driver; that as the automobile approached the crossing there were box cars standing west of the highway; that the automobile was brought to a stop, and the driver and appellee looked and listened for trains; that there were many railway tracks at the crossing, and there was a switch engine working on one of the tracks; that they neither saw nor heard a train approaching and proceeded to drive across the crossing; that as they reached one of appellant's tracks, appellant's train, that was being operated at a high and dangerous rate of speed of 40 miles per hour, in violation of a city ordinance of the city of South Bend, collided with the automobile; that the ordinance provided that no train should run within the city limits at a greater rate of speed than 8 miles per hour, and that the bell on the engine should ring while the engine was in motion; that there was no brakeman stationed at the crossing; that the whistle and bell on the engine were not sounded; that by reason of the collision of the engine and automobile appellee received permanent injuries, necessitating an expenditure of hospital and medical bills; and that wages were lost. Prayer for $12,500.

The following is a full statement of the evidence as it appears in appellant's brief, in narrative form, so far as it pertains to the issues in this case:

William E. Watson, the driver of the automobile, in direct examination testified: That he was a postal clerk, and was single. That he had taken appellee to a dance. That they danced until 11:30 p. m. and then started home. Came to Olive street, and turned south toward the railroad tracks. When they came to the first track, they stopped and looked both ways. Noticed a switch engine working on the south side of the tracks, waited, looked again, and proceeded to cross. Had gone about 60 feet when was hit by a train. Was driving a Ford sedan belonging to Lester Phillips. 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. Automobile was traveling in low gear. Appellee was riding on the right-hand side of the automobile. In the collision, the auto was turned around, and appellee was lying on the ground about 50 or 60 feet from the automobile. The car was about 25 or 30 feet from the place it was struck.

On cross-examination, the witness testified that the brakes of the auto were in good condition, and the sides were fitted with glass. He knew the road and had been over it a few times. Olive street was a paved street. The train was coming from the southwest. They stopped north of the first track and did not stop thereafter. Moved along steadily until struck. Appellee did not say anything about a train coming. He had no warning of a train approaching until he was hit. He only noticed the switch engine. It was south of the track on which they were struck, and east of Olive street. There were some box cars west of Olive street not far from the street. Appellee had been over the crossing about three times before. His attention was called to the engine that struck him by the headlight on the engine. He had driven a Ford automobile off and on for about 8 years. The brakes were in good shape, and at the speed he was driving he could have stopped the auto in three feet and avoided the accident at any time before the front wheels were on the track the train was on, if he had seen the train approaching. His eyesight and hearing were both good.

Appellee testified on direct examination that she lived in Mishawaka, was a stenographer, and had worked for the South Bend Watch Company for five months. On the night of the accident she went to a dance with William Watson, in a Ford sedan belonging to Lester Phillips. Watson did the driving. Danced until 11:30 and then started home. Stopped when they reached the tracks, and looked. Saw a switch engine east of them. Waited till it went back east and then started to cross the tracks. Heard no bell or whistle. The only thing she remembered after starting up was the accident, and she was taken to the hospital.

On cross-examination, she testified that she had driven over the crossing in question several times. She did not see the train until it struck them. She did not speak to Watson after they stopped, and then started across the tracks. Saw some box cars standing west of the crossing. They stopped before they came to the track that the cars were on. She was sitting in the front seat on the right-hand side, and there was glass in the door. It was shortly after midnight when the accident happened. She did not see the engine that struck her.

It was stipulated, so far as here involved, that the train was traveling east on the east-bound track; that the west-bound main track was north of the east-bound about 15 feet from center to center; that north of the west-bound main track was the passing track, 15 feet from center to center; that north of the passing track was a track called the new track; that north of the new track was the long track; that the south rail of the long track was 60 feet and 7 inches north of the north rail of the east-bound main track; that the box cars mentioned were on the long track; that the coal dock was 819 feet west of the west line of Olive street; that there was an ordinance in South Bend that provided for a limit of speed to eight miles in city limits, and that all engines should signal by ringing the engine bell; that by ordinance the three railroads crossing at this point were required to maintain flash-lights to be operated from 6...