Indianapolis and Cincinnati Traction Company v. Thompson
| Decision Date | 07 March 1922 |
| Docket Number | 10,964 |
| Citation | 134 N.E. 514,81 Ind.App. 498 |
| Parties | INDIANAPOLIS AND CINCINNATI TRACTION COMPANY v. THOMPSON, ADMINISTRATOR |
| Court | Indiana Appellate Court |
Rehearing denied June 1, 1922.
Transfer denied May 15, 1924.
From Hancock Circuit Court; Jonas P. Walker, Judge.
Action by Ulysses L. Thompson, as administrator of the estate of Ethel T. Lindsay, against the Indianapolis and Cincinnati Traction Company. From a judgment for plaintiff, the defendant appeals.
Affirmed.
Joseph R. Morgan, Diven & Diven and Donald L. Smith, for appellant.
Ryan Ruckelshaus & Ryan, Frank T. Brown and Omer Jackson, for appellee.
Complaint against appellant for the alleged negligent killing of appellee's decedent. The errors assigned and relied upon for reversal are that the court erred in overruling the motion for judgment on the answers to the interrogatories and in overruling the motion for a new trial.
The complaint alleges that appellant owned and operated an interurban railway between Morristown and Indianapolis, said line running in a westerly direction from Morristown to Indianapolis; that at a point about one and a half miles west of Morristown, at what is known as Stop 16, appellant's tracks are laid in a long cut about ten feet deep, and, to the west of said stop, curve about five feet in a distance of 672 feet, and are up-grade about six feet in said distance; that about 185 feet south of appellant's tracks at said Stop 16, and running parallel therewith, are the tracks of the Cincinnati, Indianapolis and Western Railroad in a cut about fourteen feet deep; that a public highway runs from the south down into the cut and over said railroad track, then up an incline for a distance of eighty-five feet, where the public road is six feet higher than the railroad track, then north and down grade for about 100 feet, over and across the track of appellant at Stop 16, where said highway crosses appellant's railroad at right angles; that on November 25, 1917, at night and while dark, appellee's decedent was riding as a guest in an automobile owned and operated by another on and along said public highway from the south, first crossing the railroad track where the view of the driver and the decedent and the other two occupants of the car to the north and toward the tracks of appellant and the crossing danger signal at said stop were obstructed by the hill between said steam and interurban railways; that the owner and driver of the automobile, after crossing the steam railroad, drove his automobile over said hill in the road and down the grade on to appellant's track at Stop 16; that before and after the automobile crossed the steam railroad, and continuously thereafter until it came within a short distance of appellant's railroad, the view of an object east of said highway at said stop was obstructed by a hill which began at the side of the highway and extended east about 1,100 feet, the top of which varied from three to fourteen feet higher than the level of the highway between the steam and interurban railways; that trees, a dwelling house, and other buildings on said hill also obstructed the view to the east, and also prevented the occupants of the automobile from hearing any noise from the east until within a short distance of appellant's tracks; that the decedent had no control over the automobile, and neither she nor the other occupants of the automobile, including the driver thereof, were familiar or acquainted with the road on which they were traveling, or the dangerous conditions and surroundings of the highway crossing; that appellant knew of the dangerous conditions and surroundings at said crossing; that the approach of appellant's car from the east could not be seen nor heard by those approaching its tracks from the south until they were within a short distance therefrom; that appellant negligently failed to give any warning of the approach of one of its cars from the east until it was within fifty feet from said crossing, at which time, the automobile in which said decedent was riding was on appellant's tracks; that appellant neglected, as its said car was approaching said stop, to sound a whistle within 100 and not less than eighty rods from such crossing, and negligently ran its said car at the high and dangerous rate of speed of sixty miles an hour from the east over said crossing against the automobile in which the decedent was riding, thereby throwing and dragging said automobile a long distance before stopping its car; that after striking the automobile, appellant negligently failed to stop its car, and that by reason of appellant's alleged negligence, the decedent was dragged a long distance and killed; that appellant, by the use of ordinary care, could have stopped its car within 100 feet after striking the automobile and have prevented the death of the decedent; that the decedent, at the time of her death, was between nineteen and twenty years of age, and earning twelve dollars per week; that she had been emancipated by her parents, was the wife of Floyd E. Lindsay, and was supporting herself while her husband was in the army; that no descendants survived her, but that her husband and father and mother survived her as her sole and only heirs at law and next of kin.
The jury returned a verdict in favor of appellee in the sum of $ 1,000, and, in answer to interrogatories, found the following facts: The crossing where the decedent was killed was about one and a half miles west of Morristown and outside the corporate limits of any city or town. The highway ran north and south, and the railway straight east at least 3,000 feet. The interurban car was traveling between fifty and sixty miles an hour, was equipped with a brilliant headlight twelve or thirteen feet above the ground and which was burning brightly, throwing a bright light on the track for 500 feet or more. It was also equipped with a whistle, which could be heard distinctly for one or two miles, and was sounded as the car crossed Blue River bridge 4,200 feet east of the crossing, and again at a point not less than eighty rods nor more than one hundred rods east of the first highway crossing west of said bridge, and again between eighty and one hundred rods east of the highway at Stop 16. November 25, 1917, decedent, together with John Meikel, Anna Roach, and James Meikel, left Indianapolis about noon for Shelbyville in an automobile owned and driven by John Meikel, the decedent occupying the right rear seat. They reached Shelbyville a distance of twenty-eight miles about four o'clock, started to return about 4:30, and reached Stop 16, fourteen miles from Shelbyville, about 8:10 p.m. James Meikel, who was in the rear seat with the decedent, had been drinking intoxicating liquor, but the others had not. The curtains on the automobile were not down and did not obstruct the view of the occupants. The driver of the automobile was acquainted with the crossing. When the front of the automobile was twenty feet south of the south rail, the interurban car was 550 feet east of the crossing; when it was fifteen feet, the interurban car was 450 feet east. The automobile at this time was being driven at a speed of three miles an hour. When the decedent was fifteen feet from the south rail, her view of said headlight was obstructed by the bank, but at all other intervening points she could have seen it clearly. Had the driver looked with ordinary care, he could have prevented the injury by stopping, but the decedent, after learning of the approach of the car, could not thereafter have prevented the injury. Appellant's motorman, as soon as he discovered the automobile, did everything within his power to stop the car and prevent the collision. The decedent was a married woman, and left her husband surviving her, who had enlisted in the army. A few days before her death, the decedent wrote and directed a letter to her husband expressing a desire that they might again live together as husband and wife. She was employed during 1915, 1916, 1917. In 1915, her earnings were more than $ 200, in 1916, more than $ 250, in 1917, more than $ 300. She had no other income, and her necessary expenses were from five to seven dollars a week.
Appellant contends that the answers to the interrogatories conclusively show that appellant was not guilty of negligence as charged. The complaint, after alleging facts relative to the location of appellant road, the location of the railroad to the south, the cuts through which both roads ran, the obstructions to the east, preventing travelers from seeing and hearing the approach of an interurban car from the east, that decedent was not familiar or acquainted with the road over which she was traveling or the crossing over appellant's railway, alleged that appellant knew the dangerous conditions surrounding said crossing, that the approach of tis car from the east could not be seen or heard by travelers on the highway until within a very short distance of the track, that appellant negligently failed to give any warning of the approach of its car until within fifty feet of the crossing, that it also failed to give the statutory signals between eighty and one hundred rods from the crossing and negligently ran its car at a high and dangerous speed, viz., sixty miles an hour.
It is true, as contended by appellant, that the motorman did everything in his power to stop the car after he discovered the perilous situation of the occupants of the automobile and that the facts found by the jury in answer to interrogatories are sufficient to show that appellant was not guilty of any negligence after discovering the presence of the automobile and the perilous situation of those riding therein, so as to prevent a recovery on the doctrine...
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