Lake Shore & M.S. Ry. Co. v. Boyts

• Decision Date: 28 January 1897
• Citation: 45 N.E. 812,16 Ind.App. 640
• Court: Indiana Appellate Court
• Parties: LAKE SHORE & M. S. RY. CO. v. BOYTS.

16 Ind.App. 640

45 N.E. 812

LAKE SHORE & M. S. RY. CO.

v.BOYTS.

Appellate Court of Indiana.

Jan. 28, 1897.

Appeal from circuit court, Elkhart county; J. M. Van Fleet, Judge.

Action by Josiah P. Boyts against the Lake Shore & Michigan Southern Railway Company for personal injuries caused by defendant's negligence. From a judgment for plaintiff, defendant appeals. Reversed.

Francis E. Baker and Charles W. Miller, for appellant. Osborn & Zook, for appellee.

ROBINSON, J.

The facts in this case, as found by the jury, are, in substance, as follows: The appellant's railroad track runs through the town of Constantine, Mich., in a general north and south direction, and parallel to and west of the main truck is a side track. Centerville street, in said town, crosses the main track and side track at grade in a general east and west direction. The appellant's depot building is 280 feet north of the Centerville street crossing. The appellee was familiar with the crossing where the accident occurred, and with the location of tracks and buildings as they existed on that day and for 10 months prior thereto. The side track terminated and connected with the main track 485 feet south of the Centerville street crossing. Station street, in said town, connects with Centerville street from the north 65 feet west of the railroad tracks, and extends north, in the general direction of the railroad tracks, to a point west of the depot buildings, and then branches off somewhat to the left, looking north. The railroad tracks were laid on a curve extending from the depot to the end of the side track south of the crossing, the outer side of the curve being west. The two tracks were the only railroad tracks at the crossing. The ground north of Centerville street, and between Station street and the railroad tracks, up to the depot building, was vacant and unoccupied, except for some logs lying thereon; but these logs would not prevent a person proceeding southward along Station street, either riding in a cutter or walking, from seeing engines and cars on the tracks to the east and southeast of him. The appellee knew of these logs being there before January 14, 1893. On the south side of Centerville street, and six feet eight inches west of the west rail of the side track, is a lime house. On the same side of Centerville street, and west of the lime house, is a lumber office. These buildings would not prevent a person in a cutter who was on Centerville street until within about 20 feet of the railroad tracks, and also on Station street for about 100 feet north of Centerville street, from seeing an engine and cars approaching on the side track from the south of Centerville street until such engine and cars came within about 40 or 50 feet of the northeast corner of the lime house. A person driving south on Station street, when at a point about 200 feet north of Centerville street, and opposite the depot, could see an engine and cars approaching from the south on the side track for about 65 feet south of the northeast corner of the lime house. A person driving south on Station street, when at a point about 185 feet north of Centerville street, could see an engine and cars approaching from the south on the side track for about 60 feet south of the northeast corner of the lime house. The appellee approached the crossing coming southward along Station street, and then eastward on Centerville street, seated in the left-hand side of a cutter, with a friend named Hamilton on the right side, the cutter being drawn by two horses, the cutter and horses being the property of Hamilton, and the team being at the time driven by him. Appellee came upon Station street more than 240 feet north of Centerville street, and had his ears covered with ear muffs or ear tips while he was in the cutter, up to the time of the accident. The team was driven all the way south on Station street, and east on Centerville street, “on a good trot,” until the heads of the horses were at the west rail of the side track. While going south on Station street, the appellee looked straight ahead, and to the left, towards the depot. On Centerville street the appellee looked straight ahead, and did not see the engine and cars until they were within one or two feet of the heads of the team. On the day of the accident, the appellee was in full possession of his senses of sight and hearing. While riding southward on Station street, appellee did not see the engine and cars at the switch, or at any point between the switch and the Centerville crossing and the side track. The train was a local freight train, and came intoConstantine on the main track from the north, at about its usual time, and stopped at the station. The engine, with two cars, went south along the main track, to the switch south of the crossing, and backed in on the side track. Part of the train left standing on the main track projected south beyond the south end of the depot building, which part the appellee saw while riding along Station street. Appellee knew that a local freight came from the north at that time. At the time appellee saw that portion of the train on the main track, he did not know that the engine had gone south on the main track. The appellee knew the location of the switch. The engine was equipped with a steam whistle and bell, as required by a law of the state of Michigan. There was no city or town ordinance requiring the sounding of the whistle within the limits of Constantine, nor prohibiting the running of trains faster than six miles per hour. As the engine and car backed in on the side track and upon the street crossing, there was no brakeman upon the rear car, nor was the engine bell ringing. The employés of the company stopped the engine and cars as soon as possible after the team and cutter came in sight, east of the line of the lime house. The appellee approached the tracks in the center of Centerville street, which is 33 feet from the north line of the lime house. A person in the center of Centerville street, when 20 feet west of the nearest rail, can see a car approaching from the south on the side track a distance of 80 feet from the center of Centerville street, and, at a distance of 30 feet west of the nearest rail, can see a car approaching a distance of 60 feet from the center of Centerville street. Neither when appellee was at the point 30 feet west of the nearest rail, nor when 20 feet west of the nearest rail, nor at any time between these points, did he look south to see whether an engine and cars were approaching. Appellee “told Hamilton to look out; there might be a train.” In approaching the crossing, the appellee did nothing to prevent an accident at the crossing. The accident occurred at about half past 3 in the afternoon. It was a clear, quiet, cold day. There were sleigh bells on the team, which rang as the team trotted. As the heads of the horses reached the west rail, the team turned, and went northward, parallel with the track, and west of it. The car struck one of the horses, and the team fell. Appellee was in the cutter after the team fell, but he was not struck by the cars or engine. The appellee alighted from the cutter on his feet and hands, in snow eight to ten inches deep. The appellee did not at any time prior to the time the horse was hit by the car attempt to get out of the cutter, nor attempt to stop the cutter. The ailments the appellee complains of were caused by this accident. On the south side of Centerville street, coming flush to the south line or edge of the street, and being within seven feet west of the west rail of the switch line, there was a building known as the plaster or lime house. About ten feet west of this building was a building known as the lumber office. It is about 70 feet from the point where the center of Station street intersects the center of Centerville street to the west rail of the switch track. These buildings obstructed the view, so that a person riding in a cutter on Station street, and east on Centerville street, could not see the approach of an engine or car coming north on the side track at any point between the switch and the place at which the car would emerge to view in front of the northeast corner of the plaster house. The appellee traveled in the center of said streets. The team and cutter belonged to Hamilton, who was at the time driving, and who was a competent and careful driver. Appellee had no control over or right to control Hamilton or the team. As the cars were being pushed north from the switch, the engine bell was not ringing, nor was any other signal given. It was down grade from the switch northward to the crossing. The cars were being pushed at the rate of eight miles per hour, and made less than the usual amount of noise. The injuries referred to in the complaint were the injuries received by appellee at the time mentioned. When in the center of Centerville street, about 70 feet west of the switch track, the appellee said to Hamilton, “You better hold up; there might be a train coming,” or words to that effect. Centerville street was much traveled at that time, was 66 feet wide, and was the main thoroughfare leading from the village to the country east and north. There was no flagman or gates at the crossing. Hamilton did not stop his team before reaching the crossing. From the horses' heads to where Hamilton sat in the cutter was about 16 feet. When appellee spoke to Hamilton to hold up, appellee braced his feet to prepare to spring out in case there should be danger. Appellee jumped out of the cutter as soon as he could after the advancing cars appeared to view. The damages were fixed at $400. Upon the special verdict, the appellant moved for a judgment in its favor, which was overruled by the court, and judgment rendered in favor of the appellee for the sum of $400.

The appellant has assigned errors as follows: “(1) The court erred in overruling appellant's motion for judgment in its...