Indianapolis Union Ry. v. Walker

• Decision Date: 12 November 1974
• Docket Number: No. 1--573A88,1--573A88
• Citation: Indianapolis Union Ry. v. Walker, 162 Ind.App. 166, 318 N.E.2d 578 (Ind. App. 1974)
• Parties: INDIANAPOLIS UNION RAILWAY, Appellant (Defendant Below), v. Ronald WALKER, a minor by his next friend, Everett Walker, Appellee (Plaintiff Below).
• Court: Indiana Appellate Court

Page 578

318 N.E.2d 578

162 Ind.App. 166

INDIANAPOLIS UNION RAILWAY, Appellant (Defendant Below), v. Ronald WALKER, a minor by his next friend, Everett Walker Appellee (Plaintiff Below).

No. 1--573A88.

Court of Appeals of Indiana, First District.

Nov. 12, 1974.

Rehearing Denied Dec. 16, 1974.

Karl J. Stipher, Terrill D. Albright, Norman G. Tabler, Jr., Baker & Daniels, Indianapolis, Richard T. Lineback, Lineback & Lewis, Greenfield, for appellant.

Howard J. DeTrude, Jr., C. Warren Holland, Indianapolis, for appellee; Kightlinger, Young, Gray & DeTrude, Indianapolis, of counsel.

LYBROOK, Judge.

Plaintiff-appellee Ronald Walker, by his next friend, Everett Walker, instituted this action seeking damages for personal injuries resulting from a collision between a locomotive of defendant-appellant Indianapolis Union Railway Company (Railway) and an automobile in which plaintiff was riding as a passenger. From judgment on a jury verdict for plaintiff in the sum of $200,000, Railway appeals, presenting the following issues for review:

1. Whether the instructions given concerning Railway's duty of care in operating its trains and maintaining a public crossing were erroneous statements of the law.

2. Whether the court erred in instructing the jury on the doctrine of last clear chance.

3. Whether the court erred in preventing Railway from examining one of its own witnesses concerning a prior written statement allegedly inconsistent with the witness' trial testimony.

4. Whether the court abused its discretion in allowing certain testimony by one of plaintiff's witnesses called to testify as an expert concerning plaintiff's injuries.

5. Whether Railway established that plaintiff was contributorily negligent as a matter of law in one or both of the following particulars:

a. Voluntarily entrusting himself as a passenger to a driver whom he knows or should have known to be under the influence of alcohol.

b. Failing to maintain a lookout for railroad crossings and failing to warn the driver of the approach of a train.

6. Whether the court's refusal to give certain of Railway's tendered instructions resulted in a failure to communicate to the jury Railway's theory of defense.

The facts most favorable to the verdict are as follows:

On the evening of September 3, 1966, Walker met Melvin Martin at a tavern in Indianapolis. Martin there consumed a quantity of beer. The two men then drove to another tavern where each consumed more beer. At approximately 1:00 A.M., the men had left the second tavern and were proceeding south on North Sherman Drive in Martin's automobile with Martin at the wheel. Martin testified that he was not drunk at that time, but not completely sober either. He further stated that rain had filled the gutters making it difficult to determine the position of the west edge of the street. The street being four lanes, he proceeded south on the outside lane at approximately twenty-five to thirty miles per hour to the point of collision with defendant's locomotive, at about the 1700 block of North Sherman Drive. He described the weather conditions as a hard rain with poor visibility. The windows of the automobile were closed, and side vision was impaired. He testified that he saw no flares, flashers, signs, cross-bucks, nor heard any auditory warnings prior to the collision. He saw no signalman, nor any other person warning traffic of the presence of the engine, and saw the switch engine for the first time after the collision.

Ronald Walker, the plaintiff, testified that on the night of the accident Martin did not appear to be drunk as they left the second tavern prior to the collision. He further testified that he had no memory of the accident itself, his last recollection being pulling up to a stop light on Sherman Drive.

Railway's witnesses testified that the engine was proceeding to an industry on the east side of Sherman Drive. A brakeman stated that the engine had stopped immediately west of the street and that he had disembarked, proceeded across the street to remove a chain, and returned to the street to signal traffic. He testified that he held a flare in one hand to signal traffic and a white lantern in the other to signal the train. He stated that he slowed one car in the outside southbound lane, signaled the engine to proceed onto the crossing, then moved to the east side of the street to signal northbound traffic.

The engineer testified that following the signal from the brakeman, he moved the engine out onto the street. Upon noticing that Martin's automobile was not slowing down, he braked and reversed the engine at the same time. He testified that Martin's automobile came upon the area of the tracks, swerved around the automobile stopped in the outside lane and struck the engine which at that time was blocking both southbound lanes.

The undisputed evidence reveals that the crossing in question is not protected by any type of fixed warning devices such as signs, flashers, gates, etc.

ISSUE 1.

Railway objected to and assigns as error the giving of the following instructions:

'Plaintiff's Instruction No. 1

The defendant Indianapolis Union Railway Company has a duty to the public to exercise reasonable care for the safety of the traveling public in the operation of its trains where the tracks upon which they are operated cross public highways. You are instructed that in determining whether the defendant in this case complied with its duty to exercise reasonable care for the safety of the traveling public, including plaintiff, you may take into consideration the conduct of the defendant's crew and all the circumstances including the presence or absence of adequate warning signals, signs, gates, bells, watchmen, flagman, and whether the train whistle or horn was sounded, together with all other circumstances concerning the crossing. If you find that the conduct of the defendant under all of said circumstances was not reasonable and prudent then the defendant would be guilty of negligence.

You are further instructed that in considering whether plaintiff, who was a passenger in an automobile, was guilty of negligence, you may take into consideration all of the above factors insofar as they would bear on his conduct under the existing circumstances.

Plaintiff's Instruction No. 2

In determining whether the railroad exercised reasonable care in maintaining a crossing reasonably safe for users of the public highway in question, and, further, in determining whether the operation of the train at the place and in the manner as shown by the evidence was or was not negligence, you may consider the fact, if it be a fact, that there were or were not any warning signals, gates, bells, an adequate number of flagmen, together with all other circumstances concerning the crossing, such as obstructions to the view, the time of day or night, the color of objects and their background, and the frequency with which travelers pass over the crossing.'

Railway initially urges that a jury may not consider the absence of warning devices at a crossing which are not required by law without a prior determination that the crossing is particularly or extraordinarily hazardous. As we shall demonstrate, in the proper context, this statement is a valid rule of law. However, its applicability in any given case is contingent upon the specific allegations of negligence which the injured plaintiff asserts. The necessity of identifying the particular breach of duty advanced by the plaintiff is revealed in the following excerpt from Pennsylvania Railroad Co. v. Sherron (1952), 230 Ind. 610, 105 N.E.2d 334:

'Negligence cannot be predicated alone upon the failure of a railroad company to erect and maintain safeguards at a public highway crossing unless such are required by statute or by the public service commission or other duly constituted authority. Terre Haute, etc., Traction Co. v. Phillips, 1921, 191 Ind. 374, 132 N.E. 740; Pennsylvania R. Co. v. Rizzo, 1949, 119 Ind.App. 505, 86 N.E.2d 91, 87 N.E.2d 885; Cleveland C.C. & St.L. Ry. Co. v. Gillespie, 1933, 96 Ind.App. 535, 173 N.E. 708. However, the failure to furnish additional safeguards at intersections may nevertheless be considered in determining whether the defendant has been guilty of negligence if the issue is properly presented. It is the duty of a railroad company to operate its trains in the exercise of reasonable care. The absence of warning signals or devices, together with all other circumstances and conditions surrounding the crossing, may be considered by the fact finder in determining whether, under all the circumstances, the train was negligently operated if the question is presented by the issues joined.'

See also, Terre Haute, Indianapolis and Eastern Traction Co. v. Phillips (1921), 191 Ind. 374, 132 N.E. 740; Tyler v. Chicago & Eastern Illinois Railway (1961), 241 Ind. 463, 173 N.E.2d 314; Minninger v. New York Central Railroad Co. (1952), 123 Ind.App. 338, 109 N.E.2d 104.

Thus, where a plaintiff is asserting an alleged breach of the railroad's duty to exercise reasonable care in the operation of its train, the jury may always consider the presence or absence of warning devices at the crossing together with all other attendant circumstances and conditions.

Quite different from the above theory of negligence is one in which a plaintiff asserts that irrespective of the manner in which a train was operated, the railroad was negligent for failing to erect and maintain warning devices at a crossing. As revealed in the cases heretofore cited, the courts of this State were not willing to impose any duty to provide warning devices not required by statute or competent authority. Such a theory therefore necessarily failed. However, in Central Indiana Railway Co. v. Anderson Banking Co. (1969), 252 Ind. 270, 247 N.E.2d 208, our Supreme Court expressly approved the following so-called majority rule which under certain circumstances permits negligence...