Holtz v. Elgin, J. & E. Ry. Co.

• Decision Date: 12 April 1951
• Docket Number: No. 18120,18120
• Parties: HOLTZ v. ELGIN, JOLIET & EASTERN RY. CO.
• Court: Indiana Appellate Court

Page 245

98 N.E.2d 245

121 Ind.App. 175

HOLTZ v. ELGIN, JOLIET & EASTERN RY. CO.

No. 18120.

Appellate Court of Indiana, in Banc.

April 12, 1951.

Robert H. Moore, J. Edwin Smith, Gary, F. Edward Dumas, Fowler, for appellant.

Harlan L. Hackbert, Chicago, Ill., Knapp, Cushing, Hershberger & Stevenson, Chicago, Ill., Glen D. Peters and Peters & Highland, all of Hammond, William S. Isham, Fowler, of counsel, for appellee.

WILTROUT, Chief Judge.

This case had its origin in a truck-train railroad crossing accident in which appellant received personal injuries for which he sought to recover damages. At the conclusion of appellant's evidence a verdict was directed for appellee, and such action is questioned here.

In determining whether a peremptory instruction should be given, directing a verdict, the court must accept as true all facts which the evidence tends to prove and draw against the party requesting such instruction all inferences which the jury might reasonably draw. In case of conflicting evidence only that evidence most favorable to the party against whom the instruction is requested will be considered. Kettner v. Jay, 1940, 107 Ind.App. 643, 26 N.E.2d 546; State ex rel. Thompson v. City of Greencastle, 1942, 111 Ind.App 640, 40 N.E.2d 388; Hummel v. New York Cent. R. Co., 1946, 117 Ind.App. 22, 66 N.E.2d 901; Indianapolis Railways v. Williams, 1945, 115 Ind.App. 383, 59 N.E.2d 586; Orey v. Mutual Life Insurance Co. of N.Y., 1939, 215 Ind. 305, 19 N.E.2d 547. 'A peremptory instruction should be given only when the evidence is clearly insufficient to establish one or more of the facts essential to the plaintiff's right to a recovery.' Boston v. Chesapeake & O. Ry. Co., 1945, 223 Ind. 425, 61 N.E.2d 326, 327. Where there is no evidence, whatever, to maintain an issue it is the duty of the court so to inform the jury. Craig v. Citizens Trust Company, 1940, 217 Ind. 434, 26 N.E.2d 1006.

We therefore must examine the facts and inferences therefrom most favorable to appellant.

The statement hereafter set forth of the evidence most favorable to appellant is based upon the recital of the evidence as set forth in appellant's brief. Appellee admits that it 'contains a fair narrative statement of the evidence,' and makes no additions or corrections. It must therefore 'be taken to be accurate and sufficient for a full understanding of the questions [presented] for decision'. Rule 2-17. Appellant, in his reply brief, has attempted to set out evidence of additional facts. Such omissions may not be supplied by a reply brief. Lyons v. Souder, 1914, 56 Ind.App. 443, 105 N.E. 511; Modern Woodmen of America v. Ball, 1922, 77 Ind.App. 388, 131 N.E. 539; Smith v. Gowan-Stobo's Estate, 1942, 112 Ind.App. 11, 41 N.E.2d 630; Waters v. Delagrange, 1915, 183 Ind. 497, 109 N.E. 758; Interstate Public Service Co. v. Moore, 1929, 88 Ind.App. 439, 161 N.E. 633.

In the words of the Supreme Court in Macbeth-Evans Glass Co. v. Jones, 1911, 176 Ind. 221, 95 N.E. 567, 569: 'No doubt, on proper showing, the Appellate Court would have granted appellant's petition to amend the brief.

'If this had been done, appellee would have had an oppportunity to answer the matters set out by the amendment. Appellant chose to insert the new matter in his reply brief. Under the rules, appellee had no right to file another brief. The Appellate Court might, on application, have granted appellee the right under such circumstances to file an additional brief. But we do not believe that such a burden should be placed on an appellee.'

A paved public highway known as Route No. 52 runs in a more or less easterly and westerly direction, and at a point approximately four miles west of Troy, Illinois, intersects appellee's right-of-way and tracks at right angles. The accident happened at this crossing.

There were two advertising signs west of the railroad and north of the road. There was a grove of trees 151 feet north of the north line of the highway and 105 feet west of the west line of the railroad right-of-way. Stationary crossing (cross-buck) signs were located at the crossing.

From a point approximately 200 feet west of the railroad track the highway sloped toward and across the railroad crossing. In the first 100 feet west of the tracks the road declined two and three-fourths inches. The decline during the second 100 feet was about two and one-fourth inches, and during the third 100 feet it declined one-half inch.

On February 17, 1941, at 11:45 A.M. appellant was operating a ton and a half Ford truck loaded with four and a half tons of coal, going east as he approached the crossing. His speed was approximately 20 miles per hour according to one witness and between 20 and 25 miles per hour according to another witness. He had driven across this crossing once before, that same morning, while it was still dark.

The weather was snowy and blustery, a condition not uncommon in the locality at that season, and the highway was covered with snow and ice. It was a dark, cloudy day.

Appellant testified: 'I could not stop in less than 300 feet under the same conditions with the load I had. Ice is hard to stop on.' Other witnesses testified that going 25 to 30 miles an hour it would take 200 to 300 feet to stop the truck on the ice.

At that time only two trains a day passed over this crossing, one going each way Both were operated by the same locomotive and crew. Inasmuch as there were no facilities for turning the locomotive around, the locomotive was operated backward going one way.

On this occasion the train was approaching the crossing from the north. The locomotive was proceeding south, but headed north and was pulling from 40 to 50 cars.

Appellant's truck was approximately 400 to 500 feet west of the crossing when first seen by a member of the train crew. At that time the forward end of the train was approximately 100 to 150 feet north of the crossing.

After the locomotive was across the crossing, or while on the crossing, the section man who was in the cab of the locomotive, told the engineer, 'that that truck is is not going to get stopped.' The fireman looked back and testified that the truck was about 200 feet away, going from one side of the road to the other. The section man testified he didn't see the truck until they were in the center of the highway. It was then between 200 and 300 feet away and swaying and sliding. The engineer testified, 'we were right at the crossing and the truck was coming. I looked back and saw the truck about 300 feet away.' The engineer immediately put the train into emergency stop and stopped in about four car lengths.

The truck hit the north end of the third car from the locomotive, about 240 feet from the locomotive.

Appellant's version of the accident was as follows: 'The surface of the road was icy. It required all of my attention to drive. * * * I did not know where that crossing was nor did I know that there was a crossing there. My window was open about two inches. I was listening for sounds along the highway. I did not hear any train whistle nor did I see any train until I got right on top of it. I was between a hundred and a hundred and fifty feet when I first saw the train. I tried to stop. I couldn't stop. I tried the brakes and threw my truck in low gear and tried to stop it that way and it kept going. My truck swung and skidded on the highway. * * * I knew it was difficult to stop my car on the ice as it was that morning. * * * I had very good brakes on my truck and very good tires. I did not have chains on my truck. * * * When I came to the scene of the accident I was driving not over twenty miles an hour. * * * I could see clearly for about a block, around 250 to 300 feet even though the snow was blowing. I was around 150 feet from the tracks when I first saw the train. I did not see any warning sign along the right-hand side of the road as I approached the intersection. I did not look to the right or left on that road because it was slippery. All my attention was focused directly ahead and on the road. * * * I didn't know a train was coming and I didn't know that there was a track there. I could have stopped the car if there wasn't any ice. * * * The first time I applied the brake was when I was about 150 feet from the crossing. * * *...