Indianapolis Union Railway Co. v. Neubacher

• Decision Date: 24 September 1896
• Docket Number: 1,651
• Citation: 44 N.E. 669,16 Ind.App. 21
• Parties: INDIANAPOLIS UNION RAILWAY COMPANY v. NEUBACHER ET AL
• Court: Indiana Appellate Court

44 N.E. 669

16 Ind.App. 21

INDIANAPOLIS UNION RAILWAY COMPANY v. NEUBACHER ET AL

No. 1,651

Court of Appeals of Indiana

September 24, 1896

16 Ind.App. 21. At 42.

Original Opinion of April 14, 1896, Reported at: 16 Ind.App. 21.

Petition overruled.

OPINION

ON PETITION FOR REHEARING.

REINHARD J.

Appellant's learned counsel make a strong and plausible argument in their brief on petition for a rehearing in support of the position that appellee was shown to be guilty of contributory negligence in attempting to pass over the railway crossing so soon after the passing of the west bound train, and at their urgent insistence we have given the questions involved a second careful consideration. There is much to be said, it must be admitted, in favor of the position taken by counsel and there are cases which, in a general way, and without careful analysis, would seem to go far toward supporting their view.

As to the question of the identification of the train which it is charged inflicted the injury upon the appellee, counsel contend that in view of the jury's answer to an interrogatory in which it is stated that they did not know what train it was that ran upon the appellee, that it is impossible for this court to hold properly that such train was a train belonging to one of the lessees of the appellant--a fact which it was probably necessary for the jury to find before they could find a verdict against the appellant. But we do not think, on the other hand, that it would be proper to presume, in the face of the general verdict, that the train was one that had no right at all to enter the depot--in other words, that it was "a trespassing train," as counsel want us to assume. The evidence is not in the record, and we are not permitted to look to it for information. If it was essential to prove that the train was one of those operated within the Union belt and under the control of appellant this finding must be deemed by intendment to be included in the general verdict, and the answer of the jury that they did not know what train it was, would not necessarily contravene or overcome such presumption. It may have been proved upon the trial that all the trains running into and out of the Union Depot are trains of appellant's lesees, and are operated by appellant, or under its direction. If so, the evidence was sufficient upon that point. There was no fatal variance between the case made by the answers to the interrogatories and that counted upon in the complaint, as to this point.

We pass then to the question of contributory negligence. If failing to wait for the train to pass a sufficient distance to enable appellee to see whether another train was approaching, was negligence on the part of appellee, it must have been so because the peculiar condition of affairs required him to wait. But we cannot say, in view of the general verdict, what all the conditions were. It must never be forgotten that we are not dealing here with a special, but a general verdict, and answers to some interrogatories. The learned counsel treat this controversy throughout as if the interrogatories and answers thereto constituted a special verdict, and the jury had not returned a general verdict at all. They even controvert the proposition, if we understand them correctly, that it was our duty to indulge in any presumptions in favor of the general verdict, a matter we shall notice more particularly hereafter. In connection with the counsel's insistence that the appellee was in duty bound to wait till the west bound train had passed beyond the point at which it obstructed the view of the train that struck appellee, counsel think we gave too much weight to the fact that the safety gate stood open, and insist that we are in irreconcilable conflict with the case of Smith v. Wabash R. R. Co., 141 Ind. 92, 40 N.E. 270. Counsel say: "In that case, the traveler knew a flagman guarded the crossing; he was accustomed to depend upon his signals; he did not know that the flagman went off duty at 6:30 p. m., and when he approached between 6:30 and 7 p. m. he looked for the flagman, and not seeing him believed his nonappearance indicated that he was in his flaghouse and therefore no train was then approaching. Upon this assumption he went on, relying upon the fact that the flagman did not warn him, as an invitation to cross. Yet the Supreme Court, even in that case, held that the plaintiff's duty of care was the same as it would have been had the crossing never been guarded by a flagman, and that his driving on, without looking out for himself, was negligence per se, to be passed upon as such by the court."

One of the material features by which the case cited must be distinguished from the case in appeal, is that in the former there was a special verdict, while in the latter there was not. As the court there very properly say: "Unless all the facts essential to a recovery by appellant are found in the special verdict, there was no error in rendering judgment thereon in favor of appellee." The learned counsel will hardly contend that the circumstances and conditions of the place of the injury were shown to be alike, or even similar in the two cases. In the case relied upon, the crossing was on Main street, in the city of Danville, Illinois, "the principal thoroughfare east and west through said city." The plaintiff in that case sought to excuse himself from looking and listening in the direction from which the train was approaching, and of which a clear view could have been had by him if he had looked, and the train heard, had he listened, the track being unobstructed for some distance, by the fact that the safety gate was open and the flagman was not there, treating the open gate as an invitation to cross, upon which he had a right to rely. The court said: "The appellant did not look or listen after the first time, when he was 100 feet from the crossing. He had an unobstructed view to the north, could have seen if he had looked, and could have heard if he had listened. The surroundings were such as to admit of his looking and listening. He neglected these precautions, and, by reason thereof was injured," etc.

In the case at bar, we have no such conditions as these. Indeed, it may be truthfully said that the very opposite was true, as appears even from the answers to interrogatories, without resorting to the indulgence of any presumptions on account of the general verdict. Here "the surroundings were" not "such as to admit of his looking and listening," but it is expressly found by the answers to the interrogatories that the confusion of noises was such as to render it impossible for him to hear. Looking could not avail him because the west bound train was in the way, although the jury found they did not know why he could not see, and that the train was not in plain sight. But they also found that the appellee did look, in both directions, after he had started across the track. It would require an extraordinary process of reasoning to lead the ordinary mind to the conclusion that the conditions were shown to be practically similar in both cases. It must be remembered, too, that in the present case there was a large number of tracks upon all of which engines and trains were almost constantly passing, and it is impossible to lay down any rule which would require a pedestrian, in such circumstances, to wait during any certain period of time after the passing of a train before undertaking to cross the track, otherwise he might never be able to pass over it at all. From anything that appears in the answers to interrogatories, as stated in our former opinion, other cars or engines might have been approaching from the opposite direction or from the same direction of the train that struck appellee, which would have made it exceedingly hazardous for him to remain longer at or near the place from which he started to cross the track. So long as the company maintains its crossing at grade with the public streets the footman certainly has some right to expect that it will adopt special precautionary measures to prevent injury from passing trains. Under these circumstances we think the jury was justified in taking into consideration the fact that the safety gate stood open and that no danger signals were given. There is no conflict between the case relied upon and the case at bar in respect of the question just considered.

The next contention of the appellant's learned counsel is introduced by them, in their brief, as follows: "The court has announced in the case in appeal that a general verdict for plaintiff raises a presumption that it was proved that the plaintiff was, at the time of injury, not guilty of contributory negligence and that the defendant, upon appeal if he would overcome the effect of the general verdict, must make it appear that the plaintiff was guilty of contributory negligence, or the verdict will stand. If this is the law, the case of Cincinnati, etc., R. W. Co. v. Howard, 124 Ind. 280, 24 N.E. 892, was not properly decided. In that case, there was a general verdict. The defendant (appellant) did not attack that verdict with evidence or facts found, showing, or even tending to show that the plaintiff was guilty of contributory negligence. It went to the Supreme Court merely with the proposition that the plaintiff had been allowed to go to the jury without proof as to what care she was exercising or what she was at the time doing, and therefore the jury could not say upon the proofs whether or not the plaintiff was negligent. * * * The Supreme Court did not find that this verdict, which had been 'approved by the trial court' raised any countervailing presumption in plaintiff's favor, but merely applied the rule that the evidence did not warrant the...