Hatmaker v. Elgin, J. & E. Ry. Co., 18725

• Decision Date: 22 March 1956
• Docket Number: No. 18725,18725
• Parties: Bertha HATMAKER, Appellant, v. ELGIN, JOLIET & EASTERN RAILWAY COMPANY, Appellee.
• Court: Indiana Appellate Court

Page 86

133 N.E.2d 86

126 Ind.App. 566

Bertha HATMAKER, Appellant, v. ELGIN, JOLIET & EASTERN RAILWAY COMPANY, Appellee.

No. 18725.

Appellate Court of Indiana, In Banc.

March 22, 1956.

Spangler, Jennings & Spangler, Wm. S. Spangler, and Hodges, Ridgely & Davis, Gary, for appellant.

Glenn D. Peters, Hammond, Harlan L. Hackbert, Chicago, Ill. (Stevenson, Conaghan, Velde & Hackbert, Chicago, Ill., Smith & Smith, Knox, Peters, Highland & McHie, Hammond, of counsel), for appellee.

ROYSE, Chief Judge.

Appellant brought this action against appellee for damages for personal injuries she allegedly received in a crossing accident at appellee's crossing on 25th Avenue west of the City of Gary, on April 17, 1951.

Among the acts of negligence charged in the complaint were, failure to give any warning bell or signal warning of the approach of the train, and failure to have lights on said train. At the conclusion of all the evidence the trial court sustained appellee's motion to instruct the jury to return a verdict for it, and the court thereupon instructed the jury to return a verdict for appellee. The error assigned here is the overruling of appellant's motion for a new trial. The specifications of that motion here relied upon are, that the court erred in sustaining the appellee's motion for a verdict in its favor, and in giving that instruction.

Appellee has raised certain technical questions as to the brief of appellant and as to whether she has preserved any proper objection to the giving of the peremptory instruction. Our examination of the brief and record discloses there is no merit to this contention.

The question presented requires a consideration of the evidence most favorable to appellant.

The record discloses that about seven p. m. on the evening of April 17th appellee's train was approaching the 25th Avenue crossing from the north. It was dark enough to require lights. Appellant was riding in the automobile of her husband. He was driving west on 25th Avenue. As he approached the crossing he slowed down to a speed of about five miles per hour. He looked both ways but did not hear a bell or whistle and saw no lights. The area around the intersection before the accident was quiet. The window on his side of the car was about half down, and on the right side where appellant was sitting it was down just a crack.

Appellant did not hear a bell or whistle or other warning signal and did not see a light on the engine. As they reached the intersection they sat there for about a second. She looked both ways and saw nothing, and she said: 'Let's go, honey.'

One witness said: 'At the time I saw the train approaching toward that crossing, I did not at any time hear the whistle blow or the bell ring because I am so used to it that I never listen to it blow'. 'When I looked at the train, I couldn't say whether it had its lights on. I don't know whether it did or not'. 'I believe the car had its lights on'.

The question presented by this appeal has been before this court and our Supreme Court frequently in recent years. In the recent case of Callahan v. New York Central Railroad Co., Ind.App., 1955, 125 N.E.2d 263 (Transfer denied), in an opinion by Judge Kendall we reviewed most of the cases relied upon by the parties hereto. We there reiterated the firmly-established rule that where the minds of reasonable persons might have differed on the questions of negligence and contributory negligence, it was error for the trial court to direct a verdict in favor of the defendant. We are of the opinion that is the situation in this case.

Therefore, the judgment is reversed with instructions to sustain appellant's motion for a new trial.

CRUMPACKER, Judge (dissenting).

Notwithstanding recent decisions of this and the Supreme Court I think there still exists, in the...