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

• Decision Date: 27 June 1922
• Docket Number: No. 10516.,10516.
• Citation: 78 Ind.App. 495,136 N.E. 39
• Court: Indiana Appellate Court
• Parties: LAKE ERIE & W. R. CO. v. HALLECK et al.

78 Ind.App. 495

136 N.E. 39

LAKE ERIE & W. R. CO.

v.HALLECK et al.

No. 10516.

Appellate Court of Indiana, Division No. 1.

June 27, 1922.

Appeal from Circuit Court, Delaware County; Wm. H. Eichhorn, Judge.

Action by Audrey M. Halleck against the Lake Erie & Western Railroad Company and another. Judgment for plaintiff, and the named defendant appeals. Affirmed.

John B. Cockrum, of Indianapolis, and Silverburg, Bracken & Gray, of Muncie, for appellant.

REMY, J.

Action by appellee Halleck, hereinafter designated as appellee, against appellant and appellee Jordan, to recover damages for personal injuries alleged to have been sustained by reason of a collision between an automobile in which appellees were riding and a locomotive and train of cars on appellant's railroad tracks, at the intersection of the tracks with a public street in the city of Muncie. It will not be necessary to set out all the averments of the complaint. Among other allegations, it is averred, in substance, that the plaintiff was riding in the back seat of an automobile owned and driven by appellee Jordan, as his guest, the top of the automobile being up at the time; that as the automobile approached the crossing Jordan did not stop, look, and listen for approaching trains; that appellant failed to have an electric light burning at the crossing as required by ordinance, although it was nighttime, and so dark that travelers riding in the rear seat of the automobile with the top up could not see the crossing before arriving thereat; that appellant by its towerman negligently lowered its crossing gates upon the automobile “as it was about to enter and was entering upon” the tracks, without ringing any bell or giving any signal thereof; that appellant negligently ran its locomotive and train against the automobile without ringing any bell or giving any signal of its approach, and at a speed of 25 miles per hour, in violation of a city ordinance; that appellee at the time did not know that Jordan intended to cross the railroad tracks, and did not see the tracks, and did not hear the engine or cars until the automobile was upon the crossing.

Appellant's separate demurrer to the complaint having been overruled, the parties defendant each answered by denial. Appellant also filed a special answer alleging that at the time of the collision there was in full force and effect in the city of Muncie a certain ordinance which made it unlawful for any railroad company to sound a locomotive whistle within the corporate limits of the city of Muncie, and that the collision occurred within the corporate limits of such city.

Trial resulted in a judgment in favor of appellee, and against both defendants, from which Jordan does not appeal.

Appellant has assigned as errors the action of the court in (1) overruling its separate demurrer to the complaint, (2) overruling motion for venire de novo, (3) overruling motion for judgment on answers to interrogatories returned by the jury notwithstanding the general verdict, and (4) overruling motion for new trial.

[1] Appellant calls attention to the averment in the complaint that Jordan, the driver of the automobile, did not stop his automobile, and did not look and listen for approaching trains, before attempting to go upon the crossing, but carelessly and negligently drove upon the tracks, and contends that the only inference to be drawn from this averment is that Jordan by looking and listening could have seen and heard the train approaching in time to have avoided the collision, and that appellee, by looking and listening, might also have seen the train in time to have avoided the injury, and that therefore the complaint discloses that appellee was guilty of negligence which contributed to her injury, and is insufficient. Appellant's contention is without merit. It does not necessarily follow that, because the driver of the automobile was negligent in not looking and listening for approaching trains, the inference must be drawn that appellee, who was his guest, was guilty of like negligence, where it is also averred that appellee was, at the time, sitting in the back seat of the automobile; that it was nighttime; that appellant had negligently failed to have an artificial light at the crossing, as required by ordinance; that the noise of the automobile interfered with appellee's hearing the approaching train; and that because of such facts and circumstances she did not see nor hear the train, and was in...