Killion v. Chicago, M., St. P. & P.R. Co.

• Decision Date: 04 March 1940
• Docket Number: 15983.
• Citation: 25 N.E.2d 647,107 Ind.App. 527
• Court: Indiana Appellate Court
• Parties: KILLION v. CHICAGO, M., ST. P. & P. R. CO. et al. R. CO. et al.

25 N.E.2d 647

107 Ind.App. 527

KILLION v. CHICAGO, M., ST. P. & P. R. CO. et al. R. CO. et al.

No. 15983.

Appellate Court of Indiana, in Banc.

March 4, 1940

Clarence R. Martin, of Indianapolis, and Curtis C. Hendren, of Bloomfield, for appellant.

Bert Beasley, of Indianapolis, and Moffett & Moomaw, of Bloomfield, for appellees.

CURTIS Judge.

This was an action for damages for personal injuries resulting from the collision of an automobile, in which the appellant was riding, with appellees' freight train at the grade crossing of State Road 67 and the appellee railroad near Beehunter, Greene County, Indiana on May 22, 1931.

The complaint among other things alleges that the appellant and her husband and a Mr. and Mrs. Emmett B. Lucas were returning to their homes in Plainville and Sanborn in Mr. Killion's automobile, from a dance in Linton, Indiana, sometime after midnight on the night in question; that they were driving on State Road 67; that the night was dark and the weather was damp, foggy and rainy and the visibility poor; that the highway upon which they were driving has a slight upward grade as it approaches the said railroad crossing and that by reason of such grade the light from the automobile head lights did not reach as far as they would reach on level ground or on a clear night and that the rays of light of said automobile head lights as they reached the crossing extended under and beyond the train of cars before they disclosed the form of the car itself which was standing across the roadway and that said freight car was dark in color and difficult to see at night; that the appellant and the driver of said automobile had traveled over said road occasionally but were not familiar with and were unaware that they were at the time approaching any railroad crossing; that the said automobile as it approached the point on said highway which crossed said railroad track was under proper control and was being operated in a careful and reasonable manner at a speed of approximately 30 miles per hour; that the front lights of said automobile were sufficient to throw a light ahead so as to make any person or object visible for a distance of two hundred feet and were at the time properly adjusted; that at a point about five or six hundred feet southeast of the crossing in question the defendants' railroad crosses, at grade, a line of railway of the Pennsylvania Railroad Company and that all trains approaching said railroad crossing are required to stop and that at said place switch tracks are maintained for the purpose of transferring freight cars from one line of railroad to the other; that on the night in question the defendants in operating a freight train on their tracks stopped the same just before reaching said railroad crossing and left it standing "for a considerable period of time the exact duration of which plaintiff is unable to state during which time the train crew was engaged in switching or in other duties, and said train while so stopped and standing extended back, over and across the intersection of the railroad and said highway number 67 and that said freight car was so standing and was blocking and obstructing said crossing as the plaintiff approached the same in the automobile driven by said Vernon R. Killion"; that said defendant railroad company did not maintain a crossing sign of the cross-arm type required by law, "on that side of the railroad crossing from which this plaintiff approached"; that the only sign at or near the crossing was one appearing on a circular disk twenty-four inches in diameter and located at the side of the road some distance from the pavement and about two hundred seventy-five feet from the crossing and that it "was wholly inadequate and ineffective to warn travellers of said crossing at night because it could not be seen at night and that neither the plaintiff nor the driver of the automobile saw the same"; that from the highway as it approached the crossing in question, the view of the station building at Beehunter, and of any engine or train standing at said crossing or at any point south of the highway is "completely obscured by an almost continuous row of buildings east of said track, consisting of two residence houses and seven or eight barns, stables, chicken houses and outbuildings".

We now quote certain other portions of the appellant's complaint setting out specific charges of negligence as follows:

"Plaintiff says that as soon as she and the driver of the automobile discovered that defendants' train was standing upon and blocking their passage over said railroad crossing, the driver shut off the power, applied the brakes and attempted to stop the automobile, and that as the driver applied the brakes he tried to turn the car to the left and run southeastwardly alongside the railroad tracks, but said obstruction was so close that it was impossible to stop or to prevent the collision; that the automobile struck the train on defendants track with great force and by reason thereof said automobile was wrecked and demolished and all the occupants thereof including this plaintiff were seriously shocked, wounded, maimed and injured, all of them were rendered unconscious, and Emmett B. Lucas was killed."

"The plaintiff alleges that the defendants were guilty of negligence and of unlawful acts and omissions which proximately caused said collision; and that as a direct consequence and by reason of each of the several negligent and unlawful acts and omissions hereinafter alleged, said collision and the injuries to this plaintiff, which are hereinafter described, resulted:"

"(a) Plaintiff says that the defendant, railroad company and the defendants, Dowling, Perry, Effinger, Hill and Armstrong, in charge of said railroad train, which was carrying or was used for carrying freight, did, negligently wrongfully and in violation of the law of the state of Indiana, permit and suffer said train and the cars composing the same to remain standing across the said public highway state road number 67, and that said defendants and each of them negligently, wrongfully and in violation of the said law of the state of Indiana, failed and neglected to cut and separate said cars and to leave a space of sixty feet across such public highway and did unlawfully, wrongfully and unnecessarily block and obstruct such public highway; that the plaintiff and the driver of the automobile exercised due and reasonable care in the operation thereof but because of the facts hereinbefore alleged they could not avoid said collision; that if the defendants had complied with the provisions of the law and had left a space of sixty feet across such highway the collision could not and would not have occurred and that such negligent, unlawful and wrongful act or omission was the direct and proximate cause of the collision."

"(b) Plaintiff alleges that there were no street lights or railway lights at or near the crossing of said railroad with state highway No. 67, at the time plaintiff approached said crossing at night, nor was there any other light or sign visible at night to warn travelers on said highway or to warn this plaintiff and the driver of said automobile that they were approaching a railroad crossing; that defendants' train was composed of more than thirty-six cars, the nineteenth car was stopped directly above the center of the highway and on none of said cars was any light displayed; that the defendants, Dowling, Perry, Effinger, Hill and Armstrong, in charge of said railroad train, and that the defendant railroad company by its said employees, knew of the topographical and physical condition surrounding said crossing which have hereinbefore been alleged; and said defendants knew of the damp condition of the weather and the poor visibility at the time and place; and plaintiff further alleges that said defe

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