Miller v. Louisville

• Decision Date: 21 April 1891
• Citation: 128 Ind. 97,27 N.E. 339
• Court: Indiana Supreme Court
• Parties: Miller v. Louisville, N. A. & C. Ry. Co.

128 Ind. 97

27 N.E. 339

Miller

v.Louisville, N. A. & C. Ry. Co.

Supreme Court of Indiana.

April 21, 1891.

Appeal from circuit court, Carroll county; John H. Gould, Judge.

Coffroth & Stuart, John F. McHugh, and T. F. Gaylord, for appellant. Wm. S. Kinnan, (E. C. Field and C. C. Matson, of counsel,) for appellee.

Elliott, J.

The facts as they appear in the special verdict are, in substance, these: The track of the appellee crosses a public highway not far from the city of La Fayette. The railroad runs from north to south, and the highway from east to west; but neither runs on a direct line. The track approaches the crossing from the west on a descending grade of about 60 feet to the mile, and the grade of the highway from the south descends to the crossing at about 250 feet per mile. On the south side of the railroad, and extending from a point one-half mile west of the crossing, to a distance of 270 feet of the crossing, there is a hill 30 feet high. A side track extends along the main track from a point 17 rods west of the crossing, eastward and beyond the highway. On the 26th day of June, 1886, there were five freight-cars, each 30 feet in length, standing on the side track. One of these cars was a box-car 10 feet high, and the others were platform-cars. Beginning at a point in the public highway 50 feet distant in a south-easterly direction from the railroad, was an open space, where the track was plainly visible to one traveling on the highway for more than one-fourth of a mile. The crossing was a dangerous one, and the appellant's intestate and her husband passed over it as often as once in every two weeks, and knew that the crossing was a dangerous one. On the 26th day of June, 1886, the intestate was riding with her husband along the highway, and at the time they reached a point within 150 feet of the crossing a train was approaching from the west, and was in plain view all the time for a distance westward on the track for more than one-fourth of a mile; but the view of the railroad track was partially obstructed by the freight-cars on the side track. The intestate and her husband were riding in an ordinary farm wagon drawn by two horses. The husband drove and managed the team. The whistle was not sounded until the train was within 70 rods of the crossing, nor was the bell rung until after the whistle was sounded. The engineer saw the intestate and her husband when within 200 feet of the crossing, and sounded the danger signal; but the husband, although he endeavored to urge his horses across the track, failed to succeed in clearing it, and the wagon was struck by the locomotive, and both the husband and his wife were killed. At a point in the highway about 100 feet from the crossing the intestate's husband apparently checked his horses. The train was then in full view, and the engineer, seeing the act of the husband, was induced to believe that he was going to wait until the train had passed the crossing. The intestate was “not prevented in any manner or in any way restrained from looking or listening for an approaching train,” and nothing was done by her to warn her husband, nor did she look or listen. It is quite clear that the husband of the appellant's intestate was guilty of contributory negligence. It is evident, from the facts stated in the special verdict, that the slightest care on his part would have enabled him to see and avoid the approaching train. But the fact that the driver of a wagon and team, which collides with a railroad train, is negligent does not necessarily preclude a recovery by one riding in the wagon with such negligent driver. The doctrine of Thorogood v. Bryan, 8 C. B. 115, has never been sanctioned by this court. Railroad Co. v. Spencer, 98 Ind. 186, and cases cited; Town of Knightstown v. Musgrove, 116 Ind. 121, 18 N. E. Rep. 452; Michigan City v. Boeckling, 122 Ind. 39, 23 N. E. Rep. 518. The doctrine has, indeed, been overthrown in England, and is repudiated by almost all of the courts of this country. See authorities cited in notes, pages 630-632, Elliott, Roads & S. Rejecting, as we do, the doctrine of imputed negligence, we are, nevertheless, required to hold that there can be no recovery in this action. We are led to this conclusion by the fact that the intestate was not shown to be free from contributory negligence. It has long been the settled law of this state that a plaintiff cannot recover in such a case as this unless it affirmatively appears that his own negligence did not proximately contribute to his injury. Hathaway v. Railroad Co., 46 Ind. 25; Railroad Co. v. Brannagan, 75 Ind. 490; Railroad Co. v. Butler, 103 Ind. 31, 2 N. E. Rep. 138; Railway Co. v. Greene, 106 Ind. 279, 6 N. E. Rep. 603; Cones v. Railroad Co., 114 Ind. 328;¹Railway Co. v. Hill, 117 Ind. 56, 18 N. E. Rep. 461; Railway Co. v. Hedges, 118 Ind. 5, 20 N. E. Rep. 530; Mann v. Railroad, etc., Co., (Ind.) 26 N. E. Rep. 819, (this term.) The fact that there was no contributory negligence may undoubtedly be inferred from circumstances; but to authorize such an inference there must be evidence of circumstances from which the inference can be legitimately drawn. There are no...