Jackson v. Rutledge

• Decision Date: 27 March 1919
• Docket Number: No. 23228.,23228.
• Citation: 188 Ind. 415,122 N.E. 579
• Parties: JACKSON v. RUTLEDGE.
• Court: Indiana Supreme Court

188 Ind. 415

122 N.E. 579

JACKSON

v.RUTLEDGE.

No. 23228.

Supreme Court of Indiana.

March 27, 1919.

Appeal from Circuit Court, Gibson County; Simon L. Vandeveer, Judge.

Action by Sylvanius E. Rutledge against William J. Jackson, receiver. Judgment for plaintiff, and defendant appeals. Affirmed.John E. Iglehart and Edwin Taylor, both of Evansville, Eugene H. Iglehart, of Indianapolis, and Embree & Embree, of Princeton, for appellant.

T. Morton McDonald, of Princeton, Robert W. Armstrong, of Huntington, and Douglas Morris, of Rushville, for appellee.

LAIRY, J.

Appellee recovered a judgment for $20,000 for personal injuries sustained by him as a result of a rear end collision between two freight trains operated on a railroad of which appellant was receiver. At the time of the collision, appellee was in the employ of appellant acting as conductor of extra train 901 running north from Seiffert to Terre Haute, and, when about three-fourths of a mile north of Youngs, the train, of which appellee was conductor, was run into from the rear by the locomotive of regular train 362 operated by servants of appellant. Train 901 left Seiffert under a caution block, there being a train ahead in the same block designated as extra 961. As train 901 approached Youngs, a red fusee, dropped by the train ahead, caused it to slow down till the signal burned out, after which it continued north until the collision occurred at a point about three-fourths of a mile north of Youngs. At the time train No. 901 slowed down for the red fusee, it did not come to a full stop, but proceeded at the rate of three or four miles per hour until the fusee burned out, after which it proceeded north, and was running from eight to ten miles per hour when train 362 came into collision with it from the rear. Train 362, which collided with the rear end of train 901, left Seiffert under a caution block which indicated that the block was not clear of other trains and that the train must proceed with caution.

The complaint proceeds on the theory that the servants of appellant in charge of train 362 were negligent in operating said train, under the conditions shown, at a dangerous rate of speed, and in failing to look out for and observe the signal lights displayed on the rear end of the caboose of train 901, which negligence is alleged to have been the proximate cause of the collision and the resulting injury to appellee.

[1] The case was tried on the theory that the right of action was based on the federal Employers' Liability Act (Act Cong. April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. §§ 8657-8665]). The sufficiency of the complaint to state a cause of action is not challenged. No demurrer addressed thereto was filed, and an attempt to challenge the sufficiency of a complaint by an independent assignment of error is now unavailing. Section 344, Burns 1914; Gary, etc., Co. v. Gunn (1915) 184 Ind. 306, 111 N. E. 183;Hedekin Land, etc., Co. v. Campbell (1916) 184 Ind. 646, 112 N. E. 97.

There is only one error well assigned, and that is that the trial court erred in overruling appellant's motion for a new trial.

[2] The first question presented under the motion for new trial is the sufficiency of the evidence to sustain the verdict. It is claimed by appellant that there is a total want of evidence to show negligence on the part of the defendant below, and that the evidence shows without dispute that the collision was caused solely by the negligence of the plaintiff. Unless there is evidence to sustain negligence on the part of defendant, the verdict must necessarily fall, regardless of any other consideration. In the absence of proof of negligence on the part of defendant, the presence or absence of contributory negligence on the part of plaintiff can have no bearing on the case. On the other hand, if negligence on the part of defendant is shown, it then becomes material to determine whether or not plaintiff was guilty of contributory negligence. At common law contributory negligence, when shown, had the effect of defeating a recovery; but, under the statute on which this action is based, it has no effect other than to diminish the damages recoverable. Norfolk, etc., R. Co. v. Earnest (1913) 229 U. S. 114, 33 Sup. Ct. 654, 57 L. Ed. 1096, Ann. Cas. 1914C, 172;Second Employers' Liability Cases, 223 U. S. 1, 32 Sup. Ct. 169, 56 L. Ed. 327, 38 L. R. A. (N. S.) 44.

[3] In disposing of the question here presented, the court may eliminate all evidence on the subject of contributory negligence and consider only the evidence bearing on the question of defendant's negligence. As constituting negligence, appellee relies on the evidence showing the manner in which train 362 was operated by the servants of the receiver in charge, and especially the evidence in reference to the speed of such train immediately before the collision and the failure of the engineer to observe the red lights on the rear of the caboose and to have his train under such control as to enable him to stop it in time to avoid a collision.

As bearing on this question, the evidence shows that train 362 left Seiffert under a yellow block. The evidence of trainmen showed that such a signal indicated the presence of a train ahead within the block and amounted to an instruction to run under control expecting to find a train ahead. There is a conflict in the evidence as to the speed at which train 362 was run from Seiffert to the place of the collision. The distance is about 8 3/4 miles. The train left Seiffert at 7:06, as shown by all the evidence, and the evidence most favorable to appellee shows that the collision occurred at 7:20, while there is other evidence that it occurred at 7:28. To cover the distance in 14 minutes the train would be required to run at an average speed of 37 1/2 miles an hour, and to cover the distance in 22 minutes it would be required to average 23.8 miles an hour. There is evidence to show that the steam was shut off and the brakes set when the train was 600 feet south of the caboose, and that, when the fireman of the locomotive jumped off at a point 300 feet from the place of collision, the train was moving at the speed of 15 miles an hour. There is also evidence that the red side lights were showing on each side of the caboose, and that the track for a distance of one-half to three-fourths of a mile south of where the collision occurred is straight and without obstructions to the view. The engineer of train 362 testified that he saw a red light ahead after leaving Youngs, but that he mistook it for a signal light at Honey Creek, which the evidence shows to be about 20 feet above the track. There is also testimony of railroad men as to the speed of the train and the distance within which it could have stopped under the conditions shown. It is true that there is evidence to show that the engineer in charge of train 362 saw no fusee on the track or other signals to indicate that the train ahead had been delayed or that it was running at slow speed, and rules of the company are in evidence which require the rear brakeman to give such warnings when the train is delayed and which require the conductor to see that the brakeman obeys the rule. The absence of burning fusees or other signals, as well as the absence of the light in the cupola of the caboose, if shown, were circumstances to be considered by the jury in connection with the other facts, conditions, and circumstances disclosed by the evidence, in deciding whether the engineer in charge of train 362 exercised the care and prudence that a man of ordinary judgment and prudence would have used under similar circumstances. The jury decided this question adversely to appellant, and this verdict must stand on appeal, unless this court can say that the facts disclosed by the evidence most favorable to appellee are of such a character that no reasonable inference of the negligence charged can be drawn therefrom. It cannot be said as a matter of law that the verdict, on the issue of appellant's negligence, is wholly unsupported by the evidence.

[4] It is also claimed that the evidence is insufficient to show that the train on which appellee was employed was being operated in interstate commerce and that appellee was engaged in interstate commerce at the time the collision occurred; but, in the presentation of the matter, it is admitted that there is some evidence that there were cars in the train billed to Chicago, Ill., and others to other points in that state. Appellant asserts that the evidence on the point is equally balanced, and that appellee, having the burden of the issue, was not entitled to succeed under such a state of the evidence. Such an argument would be proper if presented to the jury whose province it is to weigh the evidence, or to the trial court when the sufficiency of the evidence is presented by a motion for a new trial; but it has no place on appeal where the court cannot consider the weight of the evidence.

[5] H. F. Goad, who was the rear brakeman on train 901 on the night of the collision, was called by appellee as a witness, and stated as a part of his testimony that the light in the cupola of the caboose on that train was burning when the train left Seiffert, and that he was not able to state positively whether it was burning or not at the time of the accident. On cross-examination, the witness was shown a written statement which he identified as a statement signed by him previous to the trial. On being examined concerning the statement, he said that he did not remember saying as part of the statement that the cupola light was not burning; but, if he did make such statement, his memory was then fresher than at the time of testifying. He was then asked the following question:

“I read you now: ‘The markers were lighted at Shelburn on that date, but I don't remember who lighted them; neither do I remember talking to Mr. Rutledge about them. The cupola light was not burning, as it...