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

• Decision Date: 14 October 1919
• Docket Number: No. 9715.,9715.
• Citation: 124 N.E. 687,73 Ind.App. 454
• Court: Indiana Appellate Court
• Parties: LAKE ERIE & W. R. CO. v. HOWARTH.

73 Ind.App. 454

124 N.E. 687

LAKE ERIE & W. R. CO.

v.HOWARTH.

No. 9715.

Appellate Court of Indiana, Division No. 1.

Oct. 14, 1919.

Appeal from Circuit Court, Warren County; Burton B. Berry, Judge.

Action by Nora A. Howarth against the Lake Erie & Western Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.John B. Cockrum, of Indianapolis, and Grant Hall and Stuart, Hammond & Stuart, of La Fayette, for appellant.

Fraser & Isham and Elmore Barce, all of Fowler, for appellee.

BATMAN, C.J.

This is an action by appellee against appellant to recover damages for personal injuries alleged to have been caused by the negligence of appellant in operating one of its trains over and across a much-traveled public highway. The complaint is in a single paragraph. Appellant filed a demurrer thereto, which was overruled, and then filed an answer in general denial. The cause was submitted to a jury for trial, which returned a verdict in favor of appellee, with answers to certain interrogatories submitted by the court. Appellant filed a motion for judgment in its favor on the answers to the interrogatories notwithstanding the general verdict, and also a motionfor a new trial, both of which were overruled. Judgment was then rendered in favor of appellee on the general verdict for $2,000 and cost. From this judgment appellant has appealed, and has assigned errors which require a consideration of the questions hereinafter determined.

[1][2][3][4] Appellant, in support of its contention that the court erred in overruling its demurrer to the complaint, asserts, among other things, that the cause was tried upon the theory, as shown by the instructions, that it failed to give the statutory crossing signals, and that the complaint fails to state a cause of action on that theory, since there are no averments as to the requirements of the statute, or as to its failure to observe the same. While the facts alleged in the complaint are not stated in the best order, and in some particulars not as fully as they might be, a careful reading discloses that it describes the location of the crossing in question, the physical conditions which prevented a traveler, approaching the same from the north, from looking west and seeing an oncoming east bound train, and the care employed by appellee in attempting to use the crossing on the occasion of her injury, and in addition thereto alleges in substance the following facts pertinent to the question under consideration: That appellant ran one of its trains, approaching from the west, upon said crossing at a high rate of speed, and in so doing carelessly and negligently failed to blow any whistle, or ring any bell, or give any warning whatever of its approach, and carelessly and negligently struck the automobile in which appellee was riding, causing the injuries of which she complains. This court, in a comparatively recent case, in discussing the sufficiency of similar allegations to state a cause of action under the statute, said:

“While it would seem that good pleading requires that the allegations of a complaint based on the failure to give the statutory signals should be more specific than as indicated above, yet, under the decided cases, in view of such general allegations, the complaint states a cause of action based on the failure to give the statutory signals.” Chicago, etc., R. Co. v. Barnes, 119 N. E. 26.

Following this decision, we hold that appellant's contention is not well taken. But appellant urges the further objection to the complaint that it does not allege that the specific acts of negligence charged were the proximate cause of appellee's injuries, and that no facts are alleged warranting such an inference. We cannot agree with appellant as to the latter statement. The complaint alleges the conditions surrounding the crossing at the time of the accident, the care used by appellee in approaching and entering upon the same, the failure of appellant to blow any whistle or ring any bell to give warning of the approach of its train, and the manner in which the collision occurred. The facts alleged with reference to these matters are sufficient to warrant the inference that appellee would have heard the statutory crossing signals in time to have avoided the collision had they been given, and that her injuries were the proximate cause of appellant's failure in that regard. Domestic, etc., Co. v. De Armey (1913) 179 Ind. 592, 100 N. E. 675, 102 N. E. 99. We conclude that the complaint is sufficient to withstand a demurrer, when considered solely as charging a failure to give the statutory crossing signals. This being true, we need not consider any of the other acts of negligence alleged, in passing upon the assigned error under consideration. Pittsburgh, etc., R. Co. v. Ervington (1915) 59 Ind. App. 371, 108 N. E. 133.

[5][6][7] Appellant contends that the court erred in overruling its motion for judgment on the answers to the interrogatories, notwithstanding the general verdict. It bases this contention on the following facts specially found: The cut west of the crossing, occupied by the tracks, was so deep that the bank on the north concealed the approach of trains, running from the west toward said crossing, from travelers on the Pine Village road who were north thereof, except from 6 to 25 feet next to the north rail of said track; that when a traveler, proceeding south on said highway, reached a point 12 feet north of the north rail of said track at said crossing, he could see the approach of a train from the west for a distance of about one-half mile; that appellee was familiar with the physical surroundings of said crossing, and prior to said accident had frequently crossed over the same; that appellee, while riding in the automobile with her husband, approached the crossing from the north, fully appreciating the danger of using the same; that, when said train approached said crossing and reached a point one-half mile west thereof, several blasts of the whistle of the engine were given; that the headlight on the engine of said train was burning as it approached said crossing, and as the train reached the same it was running from 6 to 8 miles per hour; that at the time of the accident there were no factories in operation in the immediate vicinity of said crossing; and that appellee and her husband both had good hearing and keen sight at such time. It is appellant's contention that these facts are in irreconcilable conflict with the general verdict, as they show that appellee was guilty of contributory negligence, and that the negligence of appellant could not have been the proximate cause of her injuries. In this connection it should be borne in mind that appellant had the burden on the question of contributory negligence, and that the general verdict was a finding in favor of appellee on that issue. Before the answers to the interrogatories can be permitted to overturn the general verdict on such issue, the court must be able to say that such answers affirmatively show a state of facts which necessitates the conclusion that appellee was guilty of negligence contributing to her injury, regardless of any and all evidence that might have been introduced under the issues, tending to support the general verdict on such issues, or tending to explain such answers and reconcile them with the general verdict. Lutz v. Cleveland, etc., R. Co. (1914) 59 Ind. App. 16, 108 N. E. 886. Under this rule, we must consider that the evidence may have shown that while appellee was familiar with the physical surroundings of the crossing, as especially found, her knowledge thereof did not include such detailed information in that regard as to charge her with negligence because the automobile may not have been stopped in the most advantageous place for viewing the track toward the west; and may have further shown that while the headlight on the engine was burning, as the train approached the crossing, it “was so covered, dimmed and obscured that it gave no warning of the approach of the train,” as alleged in the complaint. The evidence may have also shown such facts with reference to the automatic electric bell, the operation of the train as it approached the crossing, appellee's care in approaching and entering upon the same, that would exonerate her from the charge of contributory negligence, notwithstanding the facts specially found. While the answers to the interrogatories establish facts proper for the consideration of the jury in determining the question of contributory negligence and proximate cause, they are not necessarily in irreconcilable conflict with the general verdict on such issues, and hence appellant's contention in that regard cannot be sustained.

[8] It is further contended, with reference to the answers to the interrogatories, that they are of such a character, when viewed in the light of the evidence, as to at least raise a doubt upon the whole record as to the correctness of the result, and that the court, by reason of such fact, should reverse the judgment and direct that a new trial be granted. In our judgment the record does not present such a state of facts as to require such action.

Appellant, in its contention that the court erred in overruling its motion for a new trial, asserts that the verdict of the jury is contrary to law, because it is based upon a complaint that does not state facts sufficient to constitute a cause of action. Having held that the complaint was sufficient to withstand a general demurrer for want of facts, it is unnecessary to give this insistence of appellant any further consideration. In further support of its contention that the court erred in overruling its motion for a new trial, appellant challenges the sufficiency of the evidence on the issues of negligence, contributor negligence, and proximate cause. The complaint stated facts sufficient to constitute a charge of negligence, based on appellant's failure to...