Hancock v. Lake Erie & W.R. Co.

• Decision Date: 04 October 1898
• Citation: 21 Ind.App. 10,51 N.E. 369
• Parties: HANCOCK v. LAKE ERIE & W. R. CO. et al.
• Court: Indiana Appellate Court

21 Ind.App. 10

51 N.E. 369

HANCOCK

v.LAKE ERIE & W. R. CO. et al.

Appellate Court of Indiana.

Oct. 4, 1898.

Appeal from circuit court, Howard county; L. J. Kirkpatrick, Judge.

Action by Helena H. Hancock against the Lake Erie & Western Railroad Company and another. Judgment for the named defendant, and plaintiff appeals. Affirmed.Fippen & Purvis and Moon & Wolf, for appellant. Bell & Purdum and John L. Rupe, for appellee.

ROBINSON, J.

Appellant brought this action against appellee and the Pittsburgh, Cincinnati, Chicago & St. Louis Railroad Company, which latter road was at the time using the track of the former, to recover damages for injuries alleged to have been received at a highway crossing. A special verdict was returned, upon which judgment was rendered in appellee's favor, and this action of the court is the only question presented by the assignment of errors. It is conceded by counsel for appellee that the verdict shows negligence on the part of the company. From the special verdict it appears that about 1 o'clock in the afternoon of August 10, 1893, a clear day, appellant, with her sister, mother, and 10-year old daughter, all in a one-seated top buggy drawn by a gentle horse, approached a street crossing in Tipton, Ind., where Jefferson street crosses appellee's tracks. Two of the ladies occupied the buggy seat, and the daughter sat on the lap of one, and appellant on the lap of the other. As seated, appellant's head came near the top of the buggy. In going from Deal street to the crossing, about 600 feet, the horse was checked, from a trot to a walk about half a square from the crossing, and from that point was driven to the crossing in a trot. When she checked the horse into a walk she listened for a train, but heard none, and from that point on she looked continuously towards the crossing for trains and the flagman, and listened continuously for trains, and saw and heard neither, nor any warning of danger, until near the track, and when she first saw the train it was so near the horse as to make it impossible to prevent his scaring. Appellant was going west and the train south. There were obstructions on the north side of the street from where appellant entered on the same, so that the track north of the street, or a train approaching thereon from the north, could not be seen by a person at any point on said street east of a few feet from the railroad track. There were four tracks at the crossing,-the main track, and two switches east and one west. A box freight car stood on the east-side track, 30 feet north of the north line of the street, which further obstructed appellant's view. Appellant was well acquainted with all the surroundings of said crossing, which was a dangerous one, and at which a flagman was constantly needed. The noise of the horse and buggy on the brick-paved street and a mill in operation in the immediate vicinity interfered with appellant's ability to hear the train, and the buildings and other obstructions on the north side of the street obstructed the sound of the approaching train. Appellant's senses of sight and hearing were unimpaired. Appellant and those with her, as they approached the crossing, were laughing and talking among themselves. The train, as it approached the crossing, was making a loud noise, which was heard by persons as far east as Deal street, and by a number of persons both east and west of the crossing. The engine bell was ringing, and the pop valve of the engine released, causing a loud noise. If appellant had stopped and listened attentively, she could have heard the train approaching the crossing before she came within 100 feet of the crossing, and if she had stopped and listened attentively she could have heard the train approaching in time to have stopped within a safe distance of the track. The flagman kept at the crossing had a little house on the south side of the street, and immediately west of the track, in which he usually stayed if no train was approaching, and if a train was approaching it was his custom to come out and signal persons approaching, and the proper and usual place for signaling was near the flagman's house. At said time he was on the south side of the street, about 50 feet west from the track, and his attention was called to appellant when she was about 150 to 200 feet from the crossing, and he then waved his flag, and when appellant was about 50 feet away he gave a second warning with his flag. Appellant failed to see said warnings, because the flagman was not at his usual place. Immediately after the second warning the flagman started towards said crossing, and cried out to appellant to stop, but she did not see or hear him or the train until she was in immediate proximity to said crossing, and upon the right of way, and after she saw the train she could not have prevented the horse from becoming frightened and turning around and overturning the buggy. Appellant, from the time she came onto Jefferson street from Deal street, could have seen the flagman on the street with his flag, and within view of appellant, until she came to the crossing. If she had looked attentively, she could have seen the flagman waving his flag to give warning before she came within 100 feet of the crossing.

It is the law in this state that a person approaching a railroad crossing, known by him to be dangerous, must exercise care in proportion to the danger to be avoided; that he must use his senses, must listen for signals or the noise of approaching trains, must observe signs put up as warnings, and look for trains where there is a view of the track; that if he is injured at a crossing the fault is prima facie his own, and he must show affirmatively that his own negligence did not contribute to the injury; that in approaching a crossing he must assume that there is danger, and act with ordinary care and prudence, on that assumption. See Railway Co. v. Hedges, 118 Ind. 5, 20 N. E. 530;Railway Co. v. Hill, 117 Ind. 56, 18 N. E. 461;Railway Co. v. Stommel, 126 Ind. 35, 25 N. E. 863;Smith v. Railroad Co., 141 Ind. 92, 40 N. E. 270; Railway Co. v. Duncan, 143 Ind. 524, 42 N. E. 37;Pennsylvania Co. v. Meyers, 136 Ind. 242, 36 N. E. 32.

It appears that there were obstructions which shut out almost all sight in the direction from which the train was approaching. That fact imposed the duty of increased care in the use of the sense of hearing, and to that end appellant, in approaching the crossing, should have stopped and attentively listened. Railway Co. v. Duncan, supra. And the jury find in their verdict that, if appellant had stopped and listened attentively, she could have heard the train approaching the crossing before she became within 100 feet of the crossing. Appellant knew that a flagman was kept at the crossing, and she was acquainted with his usual mode of attending the crossing. It is true the jury find that she failed to see the flagman when he gave the warnings because he was not at the usual and proper place for him to be. But it appears that the flagman was near, and the jury find that appellant, from the time she came onto Jefferson street at Deal street, about 600 feet from the crossing, could have seen the flagman on the street with his flag, and within view of appellant, until she came to the point where the accident occurred, and that if she had looked attentively she could have seen the flagman waving his flag to give warning before she came to Mill street, about 100 feet from the crossing.

It is argued by counsel that the finding of the jury of the ultimate fact that appellant, in approaching the crossing, exercised all the care ordinarily exercised by prudent persons under similar circumstances, must be regarded as a determination of the question of contributory negligence by the jury. Where, upon the facts found, two or more inferences may be drawn therefrom, the finding of such ultimate fact by the jury is proper. Railway Co. v. Grames, 136 Ind. 39, 34 N. E. 714. But where the jury find the facts, informing the court exactly what was done and what was not done by the injured party, and the court can, as a matter of law, adjudge that the injured party was or was not guilty of contributory negligence, the finding of such ultimate fact by the jury must give way to the findings of such specific facts. Towers v. Railroad Co., 18 Ind. App. 684, 48 N. E. 1046;Smith v. Railroad Co., 141 Ind. 92, 40 N. E. 270;Railway Co. v. Moneyhun, 146 Ind. 147, ...