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

• Decision Date: 31 December 1912
• Docket Number: No. 7,537.,7,537.
• Citation: 100 N.E. 313,52 Ind.App. 59
• Court: Indiana Appellate Court
• Parties: LAKE SHORE & M. S. RY. CO. v. MYERS.

52 Ind.App. 59

100 N.E. 313

LAKE SHORE & M. S. RY. CO.

v.MYERS.

No. 7,537.

Appellate Court of Indiana, Division No. 1.

Dec. 31, 1912.

On petition for rehearing. Petition overruled.

For former opinion, see 98 N. E. 654.

FELT, J.

The appellant in its petition for a rehearing insists with much zeal that the court in the original opinion failed to give a sufficiently full and accurate statement of the facts upon which to base an opinion, and failed to consider in detail some questions presented by the briefs and record. In view of the character of the questions urged, we have with much care reexamined the several questions presented. With reference to the facts found by the jury in answer to interrogatories, in addition to the statement in the original opinion, the finding shows that the crossing where the injury occurred was at the business center of the town which had a population of about 1,200; that appellant kept a flagman at said crossing from 6 a. m. to 6 p. m., but not after that hour; that there was much travel at said crossing after 6 p. m.; that the train which struck plaintiff was “a pickup stock train,” running upon an irregular schedule; that appellee saw the second train approaching on the south track from the east at the time he started across the track; that he proceeded across the tracks at the rate of six or eight miles per hour, and it would have required about five seconds for him to have crossed over; that he did not hear any warning call until he reached and was passing over the north track; that appellee would not have heard the bell ringing in time to avoid the collision had it been ringing; that he could have heard the whistle in time to have avoided the collision had it been sounded a short distance west of the crossing; that the noise of the train on the south track prevented appellee from hearing the approach of the train from the west; that after appellee advanced far enough to have seen the train approaching from the west, to escape a perilous position without crossing over the north track, he would have been compelled to retreat back across the south track in front of the oncoming train from the east; that appellee was between 15 and 16 years of age when injured; that if appellee had looked to the west when at the north rail of the south track, or when four feet south of the south rail of the north main track, he could have seen the train approaching which struck him; that he did not as he approached and entered upon the north main track look to the west for an approaching train upon said track; that the engine which struck him was equipped with an automatic device for ringing the bell, but the bell was not ringing when it approached or when it passed over the crossing; that the engineer on the east-bound train did not give a crossing whistle of two long and two short blasts; that there was an arc light burning at a crossing 160 feet away from the place of the accident.

[1] Appellant contends that the answers which show appellee did not look west after he started across the track, and that if he had looked to the west, when at the north rail of the south track, or when four feet south of the south rail of the north main track, he could have seen the train approaching which struck him, show that appellee was negligent in attempting to cross. The jury in answer to other interrogatories found that if he had looked to the west when he passed across the south main track in the rear of the caboose of the west-bound train, and before stepping upon the north track, he could not have seen the east-bound train in time to have avoided injury. The foregoing interrogatories are contradictory and under a well-established rule nullify each other and are rendered ineffective. But there are other important facts to be considered in determining whether this court can declare appellee guilty of negligence contributing to his injury.

[2] It is found that when he started to cross he saw the train approaching from the east following the one that had just passed on the south track; that, after he had advanced far enough to see the east-bound train on the north track, to escape a perilous situation without crossing the north track he would have been compelled to retreat back across the south track in front of the train approaching from the east. These and other findings that need not be repeated show that appellee was in a position of peril from the moment it was first possible for him to have seen the train that struck him, and in such situation the law does not hold a person to the same rule of deliberation and care that governs when he is not in such imminent peril and has time and opportunity to more accurately determine his line of conduct. If he is not guilty of negligence in coming into such perilous situation in the first instance, it is a question for the jury to determine whether, under such circumstances and conditions, he used due care or was guilty of negligence contributing to his injury. C., C., C. & St. L. Ry. Co. v. Miles, 162 Ind. 646, 70 N. E. 985;Stoy v. Louisville, etc., R. Co., 160 Ind. 144-149, 66 N. E. 615;Lowden v. Pa. Co., 41 Ind. App. 614-619, 82 N. E. 941;McIntyre v. Orner, 166 Ind. 57-69, 76 N. E. 750, 4 L. R. A. (N. S.) 1130, 117 Am. St. Rep. 359, 8 Ann. Cas. 108;Pa. Co. v. McCaffrey, 139 Ind. 430-436, 38 N. E. 67, 29 L. R. A. 104;Davis v. Chicago, etc., R. Co., 159 Fed. 10, 88 C. C. A. 488.

[3] In this case the complaint alleges that, as he started to cross in the rear of the caboose, he saw the second train approaching from the east in such close proximity that his attention was diverted and centered upon that train, and he did not see the train approaching from the west. The jury found that the train which struck him was a “pick-up” running on irregular time; that the noise of the passing train prevented his hearing the approach of the train on the north track; that he looked and listened for a train from the west before starting to cross; that he could have heard the whistle if it had been sounded for the crossing, and it would have prevented the accident, but the whistle was not so sounded. Conceding appellant's contention that it was a useless precaution to look to the west while his view was obstructed by the train on the south track, it was nevertheless the exercise of some care to listen for the whistle of a train on the north track.

[4] He was on a public highway where his rights were equal to those of the appellant except as to its right of priority when both needed to use the street at the same time. On this state of facts we cannot say, as a matter of law, that he was guilty of negligence in attempting to cross in the first instance. The question of appellee's negligence was properly submitted to the jury. Evansville & Terre Haute Ry. Co. v. Brendt, Adm'r, 172 Ind. 697-701, 88 N. E. 612.

It is also contended that the court erred in giving instruction No. 3 at the request of the appellee and in refusing to give No. 6 tendered by appellant. The instruction given in substance told the jury that the appellant was guilty of negligence per se if the whistle of the engine that struck him “was not sounded within 80 rods” of the crossing, and the bell was not rung continuously from a point 80 rods west of the crossing. The one refused is as follows: “No. 6. The statute of the state of Indiana requiring engines to be equipped with whistle and bell and the whistle to be sounded and the bell rung on approaching a crossing does not apply to streets in an incorporated town.”

[5] The statute (Burns 1908, § 5431) which requires the sounding of the whistle and the ringing of the bell also provides that it shall not interfere with any ordinance that has been or may be “passed by any city or incorporated town in this state regulating the management or running of such engines or railroads within the limits of such city or incorporated town.” There is no showing that the town of Waterloo had previous to the accident passed any such ordinance as is contemplated by the statute. In the absence of all ordinance providing regulations differing from...