Louisville & N.R. Co. v. Cromback

• Decision Date: 12 June 1895
• Citation: Louisville & N.R. Co. v. Cromback, 12 Ind.App. 666, 41 N.E. 15 (Ind. App. 1895)
• Parties: LOUISVILLE & N. R. CO. v. CROMBACK.
• Court: Indiana Appellate Court

12 Ind.App. 666

41 N.E. 15

LOUISVILLE & N. R. CO.

v.CROMBACK.

Appellate Court of Indiana.

June 12, 1895.

Appeal from circuit court, Gibson county; W. W. Medcalf, Special Judge.

Action by Jacob Cromback, administrator of Henry C. Cartmell, deceased, against the Louisville & Nashville Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed.

Iglehart & Taylor, L. C. Embree, John H. Miller, and F. P. Leonard, for appellant. Buskirk & Brady and G. V. Menzies, for appellee.

DAVIS, J.

This action was instituted by appellee to recover damages on account of the death of the decedent, Henry C. Cartmell. The complaint was in two paragraphs. The verdict was limited to the first paragraph. Omitting the formal parts of the pleadings, about which there is no dispute, it is alleged that on the 15th day of March, 1892, defendant operated a railroad, which passed through and within the corporate limits of the city of Mt. Vernon, with its main track laid over Eleventh street, and over what would be the continuation of that street to the western corporation line of the city, where it crossed a public highway; that from where the main track crossed the main street of the city, thence to the public highway on the west, for more than 20 years prior to the 15th of March, 1892, and on that day, the public, with the knowledge and consent of the defendant, had and were using that part of the main track above described as a thoroughfare in passing on foot to and from Main street, in said city, to the highway on the west; that on said day the decedent lived near where the main track intersected the highway on the west, and in the forenoon of that day started on foot from defendant's station house to his home, passing, as he left the station house, onto the main track leading to the highway, and to his home, which was and had been for the time and in manner stated in general use by the public as a passway; that as decedent stepped onto the main track one of defendant's engines was standing still on the main track, headed west, with three cars attached; that defendant's servants were at that time engaged in setting off cars on a side track of the defendant by means of a switch located a short distance west of the engine, and that in the proper management of said engine there was no occasion for the engine to go on the main track west of the switch, and where the decedent was then walking; that a person such as an engineer or fireman, then standing at an elevated place on the engine, could look west on the main track, which was straight for a quarter of a mile, with nothing to interfere with the view, or prevent the decedent, who was then walking west with his back to the engine, from being seen; that the servants of the defendant then in charge of the engine saw the decedent, who was in plain view, and knew decedent was walking westwardly on the main track, towards the public highway; that with decedent in plain view, and knowing that he was not aware that said engine was about to be started, and when he was some yards west of the switch, those in charge of the engine carelessly, negligently, and suddenly, without giving any warning or making any signal, caused the engine to be started ahead, at the rate of 20 miles per hour, towards the decedent; that after the engine and the attached cars were put in motion, and before the switch was reached, the rear car was cut off, and the engine and remaining cars were moved forward at an increased speed towards the decedent, without sounding the whistle, ringing the bell, or making any warning signal; that the engine and cars, from some cause, making no noise or sound, the decedent at this time not hearing any noise from the moving engine or cars, or knowing that same were moving rapidly towards him, ignorant of the approach of the same, and being in plain view of those operating the cars, the employés carelessly and negligently ran the engine upon him, etc.; that at that time decedent was without fault, etc. It is not alleged that appellant's employés in charge of the engine saw the decedent, or that they in fact became aware of the danger to which he was exposed, after the engine was started. There is an allegation, in substance, that the employés of appellant in charge of the train suddenly started the engine at a high rate of speed, in violation of a city ordinance, for the purpose of making a running switch, knowing that the intestate was ignorant that the engine was so put in motion, and that he was in plain view of those operating the cars; but there is no averment that, when the engine and cars were negligently moved towards and against him, they saw him, or knew that he was not aware that the engine was coming behind him.

Among the interrogatories and answers thereto are the following: “(27) Was not the defendant's engine running westward on defendant's main track at the time it collided with Cartmell? Answer. Yes. (28) Was not Cartmell walking westward between the rails of defendant's main track at the time he was struck by defendant's engine? Answer. Yes.” “(31) Was there anything in the way to prevent Cartmell from seeing the engine at the time he went upon the main track, or any time thereafter before he was struck by the engine, if he had looked in the direction from whence it came? Answer. No. (32) If you answer the next preceding interrogatory in the affirmative, state what there was to obstruct or prevent Cartmell from seeing the engine? Answer. Nothing. (33) Had not Cartmell walked past the engine by which he was injured while it was on the defendant's main track, headed west, immediately before he went upon the track in front of it? Answer. Yes. (34) Did not Cartmell know that the engine that ran over him was on the track, headed west and under steam, when he went upon the track in front of it? Answer. Yes. (35) Was Cartmell in any wise deficient in his senses of sight or hearing on the day he was injured? Answer. No.” “(38) Was not Cartmell about forty-nine (49) years old, and reasonably active, at the time of the injury? Answer. Yes. (39) Was there anything to prevent Cartmell from stepping off the track, and avoiding collision with the engine, if he had looked for its approach? Answer. No. (40) Was there anything to prevent Cartmell from stepping off of the track, and avoiding collision with the engine, if he had listened for its approach? Answer. No. (41) If there was anything to prevent Cartmell from stepping off of the track, state what it was. Answer. Having no knowledge of the engine's approach.” “(56) Was there not on the 15th day of March, 1892, a space between the defendant's main track and its side track suitable for a footway, extending from the depot at Mt. Vernon, Ind., westward, to the lower New Harmony road? Answer. Yes.” In addition to these, other answers of the jury set forth that the killing of appellee's intestate occurred on the appellant's main track, near a tool house which stood about 300 feet west of the depot at Mt. Vernon, and between the depot and the lower New Harmony road, which crossed the main track some 1,200 feet west of the depot.

The verdict was upon the paragraph of the complaint charging negligence, and in their answers to interrogatories the jury expressly returned that the injury was not purposely inflicted. The facts of the case as shown by the evidence, construed most strongly in favor of appellee, are, substantially, that on and for some years before the 15th day of March, 1892, the decedent, Henry C. Cartmell, lived at Mt. Vernon, Ind., in the immediate neighborhood of the appellant's tracks and switching yard, west of its depot. He had been for a time a section hand on appellant's road, and was well acquainted with the tracks at the place of his injury, and the use of them by the appellant. About 7 o'clock in the morning of the day in question one of appellant's freight trains, traveling west, was at its depot in Mt. Vernon, engaged in switching and moving cars. Cartmell had been at a saloon east of the depot, and was on his way from the saloon, westward, towards his home. As he proceeded from the saloon to the place where he was killed, he walked the entire length of the depot platform, stepped upon the ground at the west end of the platform, proceeded a short distance westward, between the main track and a switch just south of it, turned and went upon the main track, and continued to walk westward, between the rails, for a distance of about 300 feet, on and along appellant's right of way,-not upon any street, highway, or public crossing. The railroad was built over ground that had been used as a passway, and along the line of the track were houses, cooper shops, brick yards, etc. Near the track was a grove used by the public for picnics, barbecues, political meetings, camp meetings, etc., and also in that vicinity were the county infirmary and a racing stable. The appellant had run excursion trains for public gatherings at this grove, landing its passengers at its station,...