Lake Erie & W.R. Co. v. Stick

• Decision Date: 27 September 1895
• Citation: 143 Ind. 449,41 N.E. 365
• Court: Indiana Supreme Court
• Parties: LAKE ERIE & W. R. CO. v. STICK.

143 Ind. 449

41 N.E. 365

LAKE ERIE & W. R. CO.

v.STICK.¹

Supreme Court of Indiana.

Sept. 27, 1895.

Appeal from circuit court, Jay county; D. D. Heller, Judge.

Action by Jesse Stick against the Lake Erie & Western Railroad Company for personal injuries. Plaintiff had judgment, and defendant appeals. Reversed.

W. E. Hackedorn, La Follette & Adair, R. H. Hartford, and Gregory & Selverburg, for appellant. W. W. Orr, for appellee.

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 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 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 Mississinawa 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 20 feet southeast of said track. A bay window on the west or northwest side of the depot left 16 feet and 8 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 Mississinawa Pike” and sometimes “Pike Street.” Appellant's roadway was 100 feet wide, and Pike street was 50 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 house to the west or northwest embankment of the railway, 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 eyesight 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 fireman above named were sober, and competent to discharge their respective duties. The collision occurred on the 19th day of February, 1891, between 5 and 6 o'clock, sun time, 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 55 feet in length. It had six wheels. The tender was 19 feet long, and had eight wheels, four on a side. The height of the engine from the smokestack to the ground was 15 feet, the smokestack rising 54 inches above the body of the engine. The engine weighed 80 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 25 to 35 miles per 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 10 or 12 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 eyesight 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 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. Railway Co. v. Hill, 117 Ind. 56, 18 N. E. 461;Railway Co. v. Hedges, 118 Ind. 5, 20 N. E. 530;Railway Co. v. Stommel, 126 Ind. 35, 25 N. E. 863;Railway Co. v. Hammock, 113 Ind. 1, 14 N. E. 737;Pennsylvania Co. v. Meyers, 136 Ind. 242, 36 N. E. 32; 16 Am. & Eng. Enc. Law, 388, 389. 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 45 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 rods 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 legally sufficient, standing alone, to establish the material allegations of the complaint, this court cannot reverse the judgment, and order a new trial, even though what appears to be the fair or overwhelming preponderance seems to be against the verdict. In Railroad Co. v. Madden, 134 Ind., at pages 469, 470, 34 N. E. 227,...