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

• Decision Date: 16 April 1896
• Citation: 43 N.E. 667
• Parties: LAKE SHORE & M. S. RY. CO. v. BOYTS.
• Court: Indiana Appellate Court

43 N.E. 667

LAKE SHORE & M. S. RY. CO.

v.BOYTS.^a1

Appellate Court of Indiana.

April 16, 1896.

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

Action by Josiah P. Boyts against the Lake Shore & Michigan Southern Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Baker & Miller, for appellant. Osborn & Zook, for appellee.

REINHARD, J.

Appellee sued the appellant in the court below for damages for alleged personal injuries sustained by him on the 14th day of January, 1893, at a street crossing in the town of Constantine, Mich., while attempting, in company with one George W. Hamilton, his neighbor, to drive across the tracks of appellant at said street crossing in a sleigh or cutter drawn by two horses driven by the said Hamilton. The complaint alleges, among other things: That, at and near the depot in said town or village, the appellant's railroad runs nearly north and south, having a switch and side track along, near to, and on the west side of the main track of the road, said switch line running very close to the depot buildings and platforms, which are on the west side of the track. “That a public highway from said village, running east and west, crosses the said railroad tracks about 50 feet south of the said depot buildings. South of said highway, and within 20 feet thereof, on the grounds of the appellant, is a plaster house, situate west of and near to said side track; and immediately south of that, and close to the side track, on the grounds of the appellant, is a lumber yard and office; and, immediately south of that the railroad enters a deep cut, in which the switch is located that unites the south end of the switch line with the main line. That such was the situation and condition of things on the 14th day of January, 1893, and in addition thereto there was then on the grounds of the defendant, between the said highway and depot buildings, a large lot of logs, piled up on the west side of the side track, and close thereto, prepared for shipment on the road; said logs being piled up high, within a few feet of the highway on the north, and occupying the whole space between the highway and said depot building. That, by reason of said obstructions, the said tracks and rails of the appellant's road, and any train or cars or engines that might be running thereon, were and would be completely obscured from the vision of any person approaching the crossing, along the highway from the west, until the said person should be upon the said side track. That on said day the appellee, by the request and invitation of his neighbor, Hamilton, was riding with him in his cutter, drawn by his team, and driven by himself; and, so being in the said cutter, with the appellee, said Hamilton attempted to drive along said highway and cross the said tracks at said crossing, approaching the same from the west; and when the said cutter and team were crossing the said side track, they were run upon and crushed by an engine and train of the appellant's cars, then being backed down from the south on said side track by the appellant's servants and employés. That, by the said collision, the said cutter was demolished, and said Hamilton was killed, and the appellee was violently thrown a great distance, and was greatly bruised and injured internally, and his spine was permanently injured, and his health and ability to earn money was completely destroyed. That he has ever since suffered great pain and agony by reason of said injury, and has been compelled thereby to spend large sums of money for doctors' bills and other expenses, viz. the sum of $500. That said collision and injury occurred without the fault or negligence of the appellee contributing thereto, and the said Hamilton was then a careful and competent man to handle and drive said team. That said train, engine, and cars which so occasioned said injury were at the time negligently and carelessly backed and run upon said crossing, and against the appellee and said cutter, by the defendant's employés, without ringing any bell or giving any signal whatever of its approach, although the appellant at the time well knew that said place was dangerous by reason of the said obstruction to the view, and that the said highway was very frequently used by persons leaving and entering the said village. That at said time the following law and statute of the state of Michigan was in force, viz.: ‘A bell of at least thirty pounds weight and a steam whistle shall be placed on each locomotive engine, and said whistle shall be twice sharply sounded at least forty rods before the crossing is reached, and after the sounding of the whistle the bell shall be rung continuously until the crossing is passed, under a penalty of one hundred dollars for every neglect: provided, that at street crossings of incorporated cities and villages the sounding of the whistle may be omitted unless required by the common council or board of trustees of such city or village; and the company shall also be liable for all damages which shall be sustained by any person by reason of such neglect.’ The appellee further avers that the bell on said engine was not rung continuously for the space of 40 rods before the said crossing was passed, and the appellee was thereby injured and damaged in the manner aforesaid in the sum of $5,000 by reason of such neglect to ring the bell on the said engine. Wherefore,” etc.

The appellant filed an answer in general denial, which closed the issues; and, the cause being submitted for trial to a jury, upon motion of appellant, a special verdict was returned, consisting solely of interrogatories and the answers thereto, under the act of the legislature approved March 11, 1895 (Acts 1895, p. 248). The interrogatories and answers thereto are as follows:

“(1) Was the plaintiff familiar with the crossing where the accident occurred and the surroundings, with reference to location of tracks and buildings, as they existed on the day of the accident, for at least 10 months prior thereto? Ans. Yes. (2) Did the tracks of the defendant run through Constantine in a general north and south direction? Ans. Yes. (3) Was there a side track west of and parallel to the main track in Constantine? Ans. Yes. (4) In said town of Constantine, was there a street, known as ‘Centerville Street,’ which crossed said main track and side track, at grade, in a general east and west direction? Ans. Yes. (5) Was the depot building of defendant situate just west of the track, and about 240 feet north of said Centerville street crossing? Ans. No. (6) If you answer the preceding interrogatory ‘No,’ how far north of Centerville street is the depot building? Ans. 280 feet. (7) Did the side track terminate and connect with the main track about 440 feet south of said Centerville street crossing? Ans. No. (8) If you answer the preceding interrogatory ‘No,’ how far south of Centerville street is the junction of the main track and side track? Ans. 485 feet. (9) Did Station street connect with Centerville street from the north about 60 feet west of said railroad track? Ans. No. (10) If you answer the preceding interrogatory ‘No,’ how far is Station street from the west rail of the railroad tracks, measured along Centerville street? Ans. Sixty-five feet. (11) Were the said main track and the said side track the only railroad tracks at said Centerville street crossing? Ans. Yes. (12) Were said tracks laid on a curve extending from said depot buildings to the end of the side track south of Centerville street crossing? Ans. Yes. (13) Was the west side the outer or convex side of said curve? Ans. Yes. (14) Did said Station street extend north from Centerville street in the general direction of the railroad tracks, to a point west of the depot buildings, and then bear off somewhat to the left, looking northward? Ans. Yes. (15) Was the ground north of Centerville street, and between Station street and the railroad tracks, up to the depot buildings, vacant and unoccupied ground, except for some logs lying thereon? Ans. Yes. (16) Would these logs prevent a person proceeding southward, along Station street, either walking or riding in a cutter, from seeing engines and cars on the tracks to the east and southeast of him? Ans. No. (17) Had plaintiff known of the logs being there before January 14, 1893? Ans. Yes. (18) Was there a lime house on the south side of Centerville street, and west of the railroad tracks? Ans. Yes. (19) Was said lime house 6 feet 8 inches west of the west rail of the side track? Ans. Yes. (20) On the south side of Centerville street, and west of the said lime house, was there a lumber office? Ans. Yes. (21) Would these buildings prevent a person in a cutter, who was on Centerville street, east of Station 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 to 50 feet of the northeast corner of said lime house? Ans. No. (22) Would a person driving south on Station street, when at a point about 200 feet north of Centerville street, and opposite the depot, see an engine and cars approaching from the south on the side track for about 440 feet south of the northeast corner of the lime house? If not, state how far. Ans. No; 65 feet. (23) Would a person driving south on Station street, when at a point about 185 feet north of Centerville street, see an engine and cars, approaching from the south, on the side track, for about 100 feet south of the northeast corner of the lime house? If not, state how far. Ans. No; 60 feet. (24) Could a person, in a cutter, driving south on Station street, at any point between the points stated in the two preceding interrogatories, have seen an engine and cars, approaching on the side track, from the south,...