Lake Erie And Western Railroad Company v. Moore
| Decision Date | 26 January 1912 |
| Docket Number | 7,336 |
| Citation | 97 N.E. 203,51 Ind.App. 110 |
| Parties | LAKE ERIE AND WESTERN RAILROAD COMPANY v. MOORE |
| Court | Indiana Appellate Court |
Rehearing denied June 28, 1912.
From Hamilton Circuit Court; Meade Vestal, Special Judge.
Action by Burney Moore against the Lake Erie and Western Railroad Company. From a judgment for plaintiff, the defendant appeals.
Affirmed.
John B Cockrum and Shirts & Fertig, for appellant.
J. F Neal, Phil J. Fariss and F. G. Christian, for appellee.
Appellee sustained personal injuries in a collision with one of appellant's trains at Cass street crossing, in the town of Cicero. In an action to recover damages for such injuries, judgment was rendered in the court below in favor of appellee and against appellant. From that judgment appellant has appealed to this court, assigning as errors, (1) the overruling of its motion for judgment on the answers to interrogatories, and (2) the overruling of its motion for a new trial.
This cause is here for the second time. Lake Erie, etc., R. Co. v. Moore (1808), 42 Ind.App. 32, 81 N.E. 85, 84 N.E. 506. The complaint alleges negligence of appellant, (1) in running its engine and train of cars against appellee and his team and carriage, with great force and violence; (2) in running its engine and train of cars at a high and dangerous rate of speed, to wit, thirty miles an hour, across Cass street, which was "much used by the traveling and general public"; (3) in failing and omitting to sound a whistle or ring a bell, or to give any warning, notice or signal of the approach of said engine and train of cars toward said crossing; that appellant had and maintained at said crossing no watchman, flagman, person, gate or other means of notifying plaintiff or other travelers on Cass street of the approach of engines and cars toward and over said crossing.
The answers of the jury to fifty-six interrogatories, in substance, show that at the time of the accident, which occurred in the daytime on December 26, 1903, appellant maintained one main track, and one side-track across Cass street, in the town of Cicero. These tracks were parallel, the center of the side-track being thirteen feet east of the center of the main track, and north of Cass street they were not "practically straight" for 300 feet. On the north side, and fronting on said street, eight feet east of the side-track and twenty-three and one-half feet east of the main track, there was a mill and elevator. Two box-cars and one coal-car were standing on the side-track. One of the box-cars extended about ten feet south of the elevator. These cars, mill and elevator increased the danger of the crossing. Appellant's only means of signaling the crossing was by ringing the bell on the locomotive, or sounding the whistle. The whistle was sounded at the usual whistling post, at the bridge at the north corporate limits of the town, and was not sounded at the private road crossing about 300 yards north of Cass street. The bell was not ringing from a point at least 200 feet north of, nor when the engine reached the crossing. The train which collided with appellee came from the north, and was one hour behind its regular schedule time for arrival at Cicero. Appellee knew the schedule time for its arrival, and that it was late, and had no reason to believe that it had passed the crossing, and might have had reason to believe that it was approaching the crossing from the north. He was a person of ordinary intelligence, had good eyesight and hearing, and on said day was familiar with the location of said crossing, tracks, buildings and structures. He approached the crossing on Cass street from the east, and when on the east side of Peru street he stopped and listened for an approaching train. He did not stop when within ten feet of the side-track, nor when between said two tracks. As he approached and entered on the crossing, he had full control of his horses, and the collision was not caused by the horses stopping or plunging forward without plaintiff's command. When sixty feet from the crossing, he was driving at a slow trot, about three miles an hour, and continued at that speed until near the side-track, when he drove in a walk across the side-track and the main track. Had he stopped when directly south of the west line of the elevator shed, and listened attentively, he could have heard the train, and by remaining at that point would have avoided the injury. When appellee was on a line with the west side of the elevator, the train was 300 feet north of the crossing, and he did not hear it, because of obstructions, nor could he, when within from fifteen to sixty-five feet of the crossing, have heard a train approaching from the north within a distance of 400 feet of the crossing. He could not, at any time before entering upon the side-track, although he looked, have seen the train on the main track, on account of the box-cars, mill and elevator. He could not, by listening attentively, have heard it until within a few feet of the main track, unless he had stopped at a point fifteen feet east of the crossing, nor could he have avoided the injury by stopping and listening while he was between the main track and the side-track.
It is claimed that the answers of the jury show that appellee was guilty of contributory negligence. In support of this claim it is argued that his failure to stop and listen attentively at places available for hearing, before driving upon the crossing, is decisive of the question against appellee. In this class of cases contributory negligence is a defense, and the burden is on the defendant to establish that fact. In this case the general verdict amounts to a finding in favor of appellee as to all the essential facts stated in the complaint, and against appellant on the question of contributory negligence.
The jury specially found that when appellee was on the east side of Peru street, he did stop and listen for an approaching train. The distance between this stop and the crossing is not found. The answers also show that by stopping and listening attentively when directly south of the west line of the elevator shed, or within about eight feet of the side-track, he could have heard the train, but that he could not have seen it before entering upon the side-track. As he approached the crossing, he did look and listen, but neither was available on account of obstructions.
The complaint states that he was driving west on Cass street with a team of horses hitched to a carriage, in which carriage he was seated, and that he proceeded carefully and cautiously toward the crossing. From these facts, and the answers of the jury, the conclusion might be drawn that had appellee stopped and listened attentively when his horses were on the side-track, and approximately ten feet from the main track, he could have heard the train. Otherwise he did everything that might be expected from a prudent and cautious person under all the circumstances surrounding him at the time. If his failure to stop and listen when his horses reached a point less than ten feet from a passing train, and where he could not have seen an approaching train, was not the conduct of an ordinarily careful and prudent person, in view of the conditions there existing--and of this fact there could not be an honest difference of opinion among men of equal intelligence--then the question whether he used due care would not be one for the jury, and appellant's claim should be sustained.
But the necessity for stopping arose only when the physical surroundings made it difficult for him to see or hear an approaching train in time to avoid a collision. Appellee did stop, look and listen as he approached the crossing, but not after he passed the point opposite the west line of the elevator shed. That the place where he did stop ought to have been reasonably effective, is not denied. In view of the complaint and the answers of the jury, we cannot say, as a matter of law, the precise number of feet from the crossing he should have stopped and listened attentively, for the reason that they present a mixed question of law and fact, depending on the test, Did he exercise ordinary care, in view of the danger, in selecting the place? Malott v. Hawkins (1902), 159 Ind. 127, 63 N.E. 308; Cleveland, etc., R. Co. v. Harrington (1892), 131 Ind. 426, 30 N.E. 37; Chicago, etc., R. Co. v. Turner (1904), 33 Ind.App. 264, 69 N.E. 484. Exceptional circumstances only require the precaution to stop, in addition to the traveler's duty to "look and listen" exacted by the general rule especially applicable to this class of cases.
In this particular case, had appellant stopped a few seconds for any purpose at any point, as he approached the crossing, he would have avoided the collision, and again, had he approached the crossing more rapidly, in all probability, the accident would not have happened. Again, had the train been farther away and not within his hearing, had he stopped, the time lost in stopping might have resulted in a collision, as did his failure to stop. In our opinion, this is not a case controlled by that line of cases where the court can say as a matter of law that appellee did or did not, under all of the circumstances, use ordinary care to avoid injury. But it is ruled by cases made to depend on facts likely to affect differently the conduct of equally prudent persons placed in like situation, and therefore the question of appellee's negligence or due care is not one of law, but one of fact for the jury. Stoy v. Louisville, etc., R. Co. (1903), 160 Ind. 144, 66 N.E. 615; Cleveland, etc., R Co. v. Harrington, supra; Baltimore, etc., R. Co. v. Walborn (1891), 127 Ind. 142, 26 N.E. 207; Cincinnati, etc., R. Co. v. Grames (1893), 136...
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