Louisville, Evansville & St. Louis Consolidated Railroad Company v. Kelly

• Decision Date: 26 April 1893
• Docket Number: 862
• Citation: 33 N.E. 1103,6 Ind.App. 545
• Court: Indiana Appellate Court
• Parties: LOUISVILLE, EVANSVILLE & ST. LOUIS CONSOLIDATED RAILROAD COMPANY v. KELLY

33 N.E. 1103

6 Ind.App. 545

LOUISVILLE, EVANSVILLE & ST. LOUIS CONSOLIDATED RAILROAD COMPANY v. KELLY

No. 862

Court of Appeals of Indiana

April 26, 1893

From the Floyd Circuit Court.

Judgment affirmed.

A Dowling, for appellant.

G. H Voigt and E. B. Stotsenburg, for appellee.

GAVIN J. REINHARD, C. J., was absent.

OPINION

GAVIN, J.

This was an action by appellee to recover damages by reason of appellant's cars having run into his wagon, at a crossing of its railroad over a highway.

Appellant's contention is that, under the facts as established by the evidence, appellee is not shown to have been free from contributory negligence.

The principal facts relevant to the point under consideration are, as indicated by some of the evidence, at least, as follows: The railroad over which appellant's trains were running was a double track roadbed, about twenty-five feet wide, the rails of each track four feet 9 inches apart, with seven feet between tracks, and two and one-half feet of level ground on the outside of each track. Between the tracks and rails, boards had been laid which had rotted out, and holes were left on each side of the track rails, making the crossing quite rough. The tracks were laid on an embankment ten or fifteen feet high. From the top of the embankment, the highway sloped down a distance of thirty or forty feet to the general level of the highway, which was a main thoroughfare between Jeffersonville and New Albany. Numerous trains passed daily over the road. Appellee was familiar with the crossing. On the occasion of the accident, appellee approached the crossing from the south, with a loaded wagon drawn by one horse. When near the foot of the grade, he saw a freight train approaching from the west, which was about forty or fifty yards away. He looked to the east and saw no train. At the foot of the grade he stopped for the freight to pass, it being on the south track, the one nearest to him. After the freight passed he looked east for a train, and neither saw nor heard any. Then he started his horse up the grade. When he got on top of the grade he looked and saw appellant's passenger train approaching on the north track. It was then 130 yards away, coming from the east, backing and running at the rate of forty miles per hour. Appellee's horse was then entering upon, or just about to enter, the north track. No signals were given by the approaching train. Appellee believed he could then more safely go forward than attempt to halt and back out, because, as he says, by the time he could check his horse the train would have been on him, and, by reason of the roughness of the crossing, he probably could not have backed out. Considering the character of the crossing and all the circumstances, there was evidence to support the jury in finding that there was reasonable ground for this belief. Appellee, therefore, whipped up his horse and succeeded in getting across the track, but the hind end of his wagon was caught by the step of the car, and thus the injury was occasioned.

Appellee himself testified that when he started up the grade the freight had gone two or three rods past the crossing, but the evidence of two other witnesses supports the statement that the freight was 150 feet beyond the crossing when he started. Had proper signals been given appellee could have heard the whistling before going upon the top of the grade.

Appellant's civil engineer testifies that the track ran straight east for 700 feet, when it began to curve to the south. From the crossing to the curve, there was a clear view of the track. The engineer and others also testified that a train on the track was visible from the slope of the grade even though 1,405 feet distant. Appellee, however, testified to the presence of certain trees at the bend, and that "till you get upon the track those...