Lake Erie And Western Railroad Co. v. Stick

• Decision Date: 27 September 1895
• Docket Number: 17,223
• Parties: Lake Erie and Western Railroad Company v. Stick
• Court: Indiana Supreme Court

41 N.E. 365

143 Ind. 449

Lake Erie and Western Railroad Company v. Stick

No. 17,223

Supreme Court of Indiana

September 27, 1895

Petition for Rehearing Overruled January 24, 1896.

From the Jay Circuit Court.

The judgment is reversed with instructions to sustain the motion for a new trial and for further proceedings in accordance with this opinion.

W. E Hackedorn and J. B. Cockrum, for appellant.

Orr Leffler & Smith, for appellee.

OPINION

McCabe, J.

The appellee sued the appellant in the Delaware Circuit Court to recover damages on account of a personal injury which he alleged was inflicted on him by the negligence of the appellant. The venue was changed to the Jay Circuit Court where a trial resulted in a verdict and judgment against the appellant for $ 4,000.00 over its motion for a new trial.

It is assigned for error here that the circuit court erred in overruling a demurrer to each of the first and second paragraphs of the complaint, in overruling the defendant's motion for judgment in its favor on the answers to interrogatories notwithstanding the general verdict, and in overruling appellant's motion for a new trial.

Among the reasons assigned in the motion for a new trial are that the verdict is not supported by, and is contrary to, the evidence and the law, and that the court erred in giving and refusing certain instructions.

The principal ground relied on by the appellant is the insufficiency of the evidence.

The appellant's railroad track runs in a southwesterly direction from the northeast through the westerly edge of the unincorporated village of Albany, in Delaware county, whose streets run due north and south and east and west.

The street known as the Albany and Mississinewa pike or Pike street, runs east and west through the town and crosses the appellant's track about 200 feet southwest of appellant's passenger depot, situated twenty feet southeast of said track. A bay window on the west or northwest side of the depot left sixteen feet and eight inches between the east or southeast rail of the track and the bay window. The appellant's right of way is level and nearly straight, there being no curves from Pike street to the east or northeast until it crosses the Albany and Eaton pike, which is northeast from Pike street crossing 1,665 feet. Pike street crossing is where the injury occurred. That street is sometimes called the Albany and Mississinewa pike and sometimes Pike street. Appellant's roadway was 100 feet wide and Pike street was fifty feet wide. The appellee lived on the west or northwest side of appellant's track and south from Pike street some 100 yards or more. The principal business part of the town was east or southeast of appellant's roadway.

Appellee had before that time been in the habit, when coming from home up into town, of passing from his home to the west or northwest embankment of the railroad and then passing along that to Pike street, and thence along that street up into town and traveling the same route in returning home. He had lived at that place for a number of years and was familiar with all the surroundings, including the railroad track, buildings, crossings, etc. He had often passed over the track at Pike street crossing. He also knew the character of trains, including engines with tenders attached thereto, that passed at regular and irregular times. His eye-sight and hearing were both good and he was a spry, active man, able to walk and step around actively.

Shortly before the time he was injured he had left his home and by the usual route walked up into town, and while there did some shopping and then started on his return home. For a short distance he walked on the side of Pike street and before reaching the crossing of the railroad he passed out into the middle of Pike street. The street and the railroad were substantially on a level, so that ordinarily an engine could be seen approaching on the track a half mile east or northeast from the Pike street crossing, by a person standing within six or eight feet southeast of the east or southeast rail at said crossing. The appellee proceeded along Pike street west approaching the railroad crossing, and on reaching the crossing was struck by a passing engine of appellant and injured. Appellant, as had been its custom, was transferring an engine and tender attached thereto from Lima to Lafayette. It was being run by T. A. Hurley, engineer, and A. T. Railsback, fireman. Another similar engine and tender, also being transferred, was some 300 to 350 feet behind the first in charge of another engineer and fireman. The engineer and firemen above named were sober and competent to discharge their respective duties.

The collision occurred on the 19th day of February, 1891, between five and six o'clock suntime, or at 5:20 o'clock p. m. railroad time; it was not dark, but was between sundown and dark; it was twilight. During the afternoon some rain had fallen, but at the time of the injury it was not raining. The engine was what is known as a mogul engine with tender attached and fifty-five feet in length. It had six wheels. The tender was nineteen feet long and had eight wheels, four on a side. The height of the engine from the smoke stack to the ground was fifteen feet, the smoke stack rising fifty-four inches above the body of the engine. The engine weighed eighty tons, including the tender.

The evening at the time appellee was injured was still and quiet. The engine at the time was running at the rate of twenty-five to thirty-five miles an hour.

The appellee testified that when within six or eight feet of the track he stopped and attentively listened and looked for an approaching train both ways and did not see any train or hear one. Could have heard a watch ticking ten or twelve feet away, but did not hear the engine until it struck him, "did not go inside the rail until I was struck by the engine. With a headlight burning I could see an engine at night a mile up the track. From where I stood I could not see further east than to the depot on account of the weather. It was about 200 feet to the depot. My eye-sight was good. I could then read an ordinary newspaper without glasses. There was no machinery of any kind near there to make noise to interfere with me hearing. Nothing to keep me from hearing. The engine made no noise as it came up behind me. I heard no ringing of the bell or sound of the whistle. There were no signals whatever given. I had no notice of any engine coming. I saw no headlight. I presume I looked up the track past the big part of the depot. I knew it was a dangerous place at the crossing. There are generally some trains running on the road after night. They go through at irregular hours." The foregoing statement of facts outside of the appellee's testimony is either uncontradicted or where there is a conflict the version of the facts are most favorable to the appellee and as given by his witnesses has been adopted.

Actionable negligence is made up of three elements, according to our decided cases, all of which must be alleged and proven affirmatively by the plaintiff in order to recover. Those elements are first, the defendant's negligence; second, the plaintiff's freedom from fault or negligence in the matter complained of, and third, damage to the plaintiff proximately caused by the defendant's negligence. The failure to establish any one of these elements by the evidence is as fatal to a recovery as the failure to establish each and every one of them. Ohio, etc., R. W. Co. v. Hill, Admx., 117 Ind. 56, 18 N.E. 461; Chicago, etc., R. W. Co. v. Hedges, Admx., 118 Ind. 5, 20 N.E. 530; Louisville, etc., R. W. Co. v. Stommel, 126 Ind. 35, 25 N.E. 863; Indiana, etc., R. W. Co. v. Hammock, 113 Ind. 1, 14 N.E. 737; Pennsylvania Co. v. Meyers, Admx., 136 Ind. 242, 36 N.E. 32; 16 Am. and Eng. Ency. of Law, 388-9.

The plaintiff is required to establish all these elements of his cause by a fair preponderance of all the evidence. The particular acts of negligence charged against the appellant were: "that as the plaintiff approached the crossing the defendant, by its agents and servants, was also approaching said crossing from the northeast with two engines or locomotives to which no car was attached, one following the other, and about 300 or 350 feet apart, * * negligently racing one of said engines with the other * * * at a great and dangerous rate of speed * * of forty-five miles per hour, to the deadly peril of limb and life of plaintiff. * * * That no signal or warning was given of the approach of said engines, and the whistle was not sounded nor was the bell rung within 100 yards of said crossing, it then being the twilight hour and the sky overcast with clouds, and said engines were running so swiftly that they made no rumbling sound and gave no warning whatever of their approach, * * * and without fault or negligence on his part, he was struck and run upon by one of said engines * * * and * * was knocked and thrown from the crossing to the ground with great violence, and the bones of his shoulder and upper part of the arm and * * of his leg and hip and other bones of his body were broken and crushed, etc."

From the evidence as it appears to us in the record, not only was there no preponderance of evidence in support of the charge of negligence against the defendant and the plaintiff's freedom from negligence contributing to his injury, but as it appears to us on paper the overwhelming preponderance of the evidence establishes that the appellant was not guilty of the negligence alleged or any part of it, and that the appellee was guilty of negligence contributing to his injury. But we have no power to weigh the evidence, and if there is evidence tending to support the verdict, which is...