Indiana Union Traction Co. v. Hiatt
| Decision Date | 20 December 1916 |
| Docket Number | No. 8990.,8990. |
| Citation | 65 Ind.App. 233,114 N.E. 478 |
| Parties | INDIANA UNION TRACTION CO. v. HIATT. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Wells County; Robert M. Van Atta, Judge.
On rehearing. Reversed.
For former opinion, see, 112 N. E. 406.J. A. Van Osdol and Kittinger & Diven, all of Anderson, for appellant. E. C. Vaughn, of Bluffton, and G. A. Henry, of Marion, for appellee.
Appellee, as administrator of the estate of his deceased daughter-in-law, Anna Hiatt, brought this action to recover damages for personal injuries to his decedent resulting in her death, caused by one of appellant's cars striking her, as she was attempting to cross appellant's tracks at a private crossing, known as “Hiatt's Crossing,” in Grant county. A trial before a special judge and jury resulted in a verdict for $4,000, on which judgment was rendered.
The following points urged in the trial court in support of the demurrer to the complaint are properly presented for our consideration: That the complaint does not disclose by proper averments: (1) That appellant owed decedent any duty to exercise care for her safety; (2) or that appellant was guilty of negligence; (3) or that negligence, if shown, was the proximate cause of decedent's injury and death; (4) that it affirmatively appears from the complaint that decedent was guilty of negligence which contributed to her injury and death.
The complaint is substantially as follows: Appellant operated an interurban electric railroad from Marion southward through Jonesboro and Summittville to points beyond. The railroad passed through a farm situated between Marion and Jonesboro, upon which decedent lived with her husband and children. The farm residence was about 150 feet east of the railroad. A private road extended across the farm passing westward near the north side of the residence and thence intersecting the railroad at grade. The intersection was designated by appellant and others as “Hiatt's Crossing.” Hiatt's Crossing was, and for a number of years had been, a stop on appellant's railroad where passengers were received on and discharged from certain local cars, among them a car running between Marion and Summittville, and known as the Summittville car. Such local cars, however, stopped at Hiatt's Crossing to receive passengers only on signal. The signal in common use after dark was a burning match or burning paper held or waved from a point on or near the track. It had been the custom of decedent and the members of her family for a number of years to do their trading at Jonesboro, and to that end to embark on the Summittville car from said crossing. In one of its daily trips southward this car was scheduled to arrive at the crossing about 6:50 p. m. It had long been the custom of decedent and members of her family and others, when desiring to take passage on said car at Hiatt's Crossing, when it arrived after dark, to signal it as above indicated, whereupon the motorman in charge, on seeing such signal, invariably made answer by two short blasts of the whistle, thereby indicating that the signal had been observed, and that the car would be brought to a stop, and he thereupon invariably did bring his car to a stop at the crossing, and received as passengers the persons so signaling.
On the evening of September 17, 1910, decedent and her husband went from their residence to the crossing, the husband being some distance in advance, for the purpose of taking passage on the Summittville car, to go to Jonesboro to do their trading. The husband arrived at the crossing at about 6:50, that being the time at which such car usually arrived, and seeing the light of an approaching car several hundred feet north, and supposing it to be the Summittville car, he signaled it by using a lighted match, whereupon the motorman in charge of such approaching car, “in response to said signal so given by decedent's said husband, carelessly and negligently then and thereupon immediately answered that said car would stop at said crossing, by giving the usual two short whistles.” Decedent at such time was near the track, but on the east side thereof, and, seeing the signal and hearing the response thereto, she believed from her past experience that the car would stop. Appellant received passengers on south-bound cars at such crossing only from the west side of the track. Decedent, knowing such fact, and being on the east side of the track when she heard the answering signal, immediately started to cross the track, when she reached the west rail, “and, while in the exercise of due care upon her part, she was carelessly and negligently struck with great force and violence by said car” and instantly killed. The car that struck her was a limited car, which should have, and usually did, arrive at the crossing some minutes before the Summittville car, but at this time the former was running on the time of the latter. The latter usually passed the crossing at a speed of 20 to 30 miles per hour, but the former was running “at the dangerous and reckless rate of 50 to 60 miles per hour.” After answering the signal, the limited car did not stop or slacken speed, but by defendant's motorman in charge it was “wrongfully and carelessly and negligently caused to continue its high speed of some 50 to 60 miles per hour, over and across said crossing.” The glare of a powerful headlight with which the car was equipped made it impossible for decedent to distinguish a limited from a local car, or to determine the speed or distance of the car, and her only means of knowing whether the car was slackening speed, and whether it would stop was the fact of said answering signal, as appellant knew when said motorman gave such signal. Decedent believed that said car was the local car, and that it would stop, because two sounds of the whistle were carelessly and negligently given as aforesaid, and, so believing, decedent, in the exercise of due care and without any negligence on her part, and believing that she would have ample time to cross the track before the car arrived, attempted to do so, and was killed as aforesaid. Had appellant slackened the speed of the car and brought it to a stop, as its signal indicated, and as it thereby promised, she could have crossed the track in safety.
[1] It is alleged that the proximate cause of decedent's injury and death was:
Proceeding to apply the law to the facts averred respecting the first objection urged against the sufficiency of the complaint, it appears that appellant, by its manner of operating its road, extended to all persons at least impliedly an invitation to station themselves at Hiatt's Crossing near the track, within a reasonable time before the arrival of a local car, in case they desired to embark as passengers on such car from such stop. Appellant likewise extended to such persons an invitation, or gave them a direction, to make known to the operators of such an approaching car their presence and purpose by a signal established and understood by virtue of custom. In acceptance of such invitation, decedent, as one of such persons, at the time involved here, had so stationed herself for the purpose aforesaid, and, observant of such direction, had caused the signal to be given. She was therefore in a proper place at a proper time, and at a place where at the time she had a lawful right to be, and in the usual manner had indicated her presence. She was there in acceptance of appellant's implied invitation. Appellant was bound to anticipate the presence of all persons who might be at such crossing at proper times, in acceptance of such invitation, and hence was chargeable with knowledge of decedent's presence, especially after her presence had been indicated in the usual manner. Under such circumstances, it matters not whether the relation between decedent and appellant be deemed to be that of passenger and carrier, or only that of a prospective passenger and carrier, out of such relation there arose, as matter of law, a duty as against appellant in the operation of its car to exercise reasonable care for decedent's safety. The complaint is therefore sufficient as against the first objection. Tippecanoe, etc., Co. v. Cleveland, etc., Co., 57 Ind. App. 644, 104 N. E. 866, 106 N. E. 739;Pere Marquette Co. v. Strange, 171 Ind. 160, 84 N. E. 819, 85 N. E. 1026, 20 L. R. A. (N. S.) 1041;Indianapolis, etc., Co. v. Hudelson, 13 Ind. 325, 74 Am. Dec. 254;Cleveland, etc., Co. v. Jones, 51 Ind. App. 245, 99 N. E. 503;Warner v. Baltimore, etc., Co., 168 U. S. 339, 18 Sup. Ct. 68, 42 L. Ed. 491;Metcalf v. Yazoo, 97 Miss. 455, 52 South. 355, 28 L. R. A. (N. S.) 311;Karr v. Milwaukee, etc., Co., 132 Wis. 662, 113 N. W. 62, 13 L. R. A. (N. S.) 283, 122 Am. St. Rep. 1017.
[2][3] Where a duty to exercise reasonable care is shown to exist, a failure to exercise such care is negligence. As we have said, the averments of the complaint here disclosed the existence of a relation...
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McClure v. Austin, 372A133
...upon the speeds of motor vehicles under any and all circumstances. We cannot and will not do so. See Indiana Union Traction Co. v. Hiatt (1916), 65 Ind.App. 233 at 248, 114 N.E. 478, 115 N.E. In the instant case, the witness was sought to be qualified as an expert by his testimony that he w......
- Indiana Union Traction Company v. Hiatt