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

• Decision Date: 31 May 1905
• Docket Number: No. 5,393.,5,393.
• Court: Indiana Appellate Court
• Parties: LAKE ERIE & W. R. CO. v. FIKE.

35 Ind.App. 554

74 N.E. 636

LAKE ERIE & W. R. CO.

v.FIKE.

No. 5,393.

Appellate Court of Indiana, Division No. 1.

May 31, 1905.

Appeal from Circuit Court, Wabash County; H. B. Shively, Judge.

Action by David Fike against the Lake Erie & Western Railroad Company. From a judgment in favor of plaintiff, defendant appeals. Reversed.John B. Cockrum and George Shirk, for appellant. John F. Lawrence and D. E. Rhodes, for appellee.

MYERS, P. J.

Appellee begun this action in the Miami circuit court against appellant to recover damages for personal injuries received at the crossing of Broadway street and appellant's railroad, in the city of Peru, Ind. On change of venue the case was sent to the Wabash circuit court, and there tried by a jury, resulting in a verdict and judgment for appellee. Interrogatories were submitted to the jury, which, with their answers thereto, were returned with their general verdict. The overruling of appellant's motion for judgment in its favor on the interrogatories and answers of the jury notwithstanding the general verdict is here assigned as error. After a careful examination of the record in this case, it seems to us the real question is presented by this assignment. The facts in this case, as taken from the interrogatories and answers, may be stated as follows: On February 10, 1902, appellant was a duly organized railroad corporation owning and operating a line of railroad running through the city of Peru, Miami county, Ind. That appellee was on said date residing near the town of Mexico, about four or five miles north of said city of Peru, and for 30 years continuously prior thereto had there resided. That appellee's usual course of travel to said city was along Broadway street, in said city. That on said date the Wabash Railroad Company crossed Broadway street in said city with three main and two side tracks, all running east and west, and appellant crossed said Broadway street with one track running east and west about 60 or 70 feet south of the south track of said Wabash Railroad Company. That between the tracks of the two railroad companies, and on the east side of Broadway street, was a small park, and immediately east of the park a joint passenger station of such railroads was situated. That near the east side of Broadway street, and immediately north of appellant's track, was a small house, occupied by a flagman in the employ of appellant. That between the tracks of said two railroad companies, about 150 feet west of the west side of Broadway street, was located appellant's freight station, and west and south thereof were appelant's freightyards, and beginning about 25 feet west of the west line of Broadway street a number of tracks lead off from appellant's track which crosses Broadway street to various places in appellant's freightyards. That on said date a freight train destined for points north of the city of Peru was made up in appellant's said freightyards, to which were attached two locomotives in the form of what is commonly known as a “double header,” and, to reach its destination, it was necessary for said freight train to cross said Broadway street at the point where the accident occurred. That said freight train, in starting on its journey, came within 15 or 20 feet of the west side of said Broadway street on appellant's track and stopped, where it remained until the engineer on the leading engine received the signal from the conductor of said train to start. That the stop was made for the purpose of repairing a defect in the air-brake attachment on said train, and, when this repair was made, the conductor, who at that time was near the rear end of the train, signaled the engineer to start the train for its destination. That it was the duty of the engineer on the first or leading engine to receive and obey the signals of the conductor with reference to the starting of the train. That the engineer on the leading locomotive was in his proper place, leaning out of the window on the south side of the cab, looking west to get the signal from the conductor to start. That, on receiving the signal to start the train, it was the duty of the engineer of the leading locomotive to sound the whistle twice in succession, which meant, “Off brakes,” which was the proper and only notice, in the practical operation of freight trains, to be given to the employés engaged in the management and handling of the train, and was necessary to be given for the safety of those so employed. That, in the proper handling of said train, and in obeying the orders of the conductor, it was necessary for the engineer to sound the whistle before looking toward said Broadway crossing. That on said date, between 1 and 2 o'clock in the afternoon, and while appellee was on his way to said city, and in a sled drawn by a three year old horse, and on said Broadway street, and while said train and locomotives were standing as aforesaid, he stopped at a point just north of the tracks of the Wabash Railroad Company and north of appellant's track, which crossed said street, and there remained until signaled by appellant's flagman to proceed across said tracks. That, upon receiving the signal from said flagman, appellee started across said tracks along the east side of Broadway street, and when near or on the track of appellant, and without any warning or anything to indicate to him that appellant's engineer would sound the whistle, before he could get across said track, appellant's engineer on the leading engine, in response to the signal of the conductor, gave the signal, “Off brakes,” by sounding the whistle on the locomotive twice in succession, which frightened appellee's horse. That the width of Broadway street at the point crossed by appellant's tracks was 70 feet, and, at the time the whistle was sounded, appellee was about 90 feet east of said first locomotive. That said engineer on said locomotive at the time of sounding said whistle had no knowledge that appellee was crossing or desired to cross said tracks, but, had he looked, he could have seen appellee at the time the whistle was sounded. That appellee at said time was the only traveler crossing said tracks. That the flagman, at the time of...