Miller v. Smith, 18560

• Decision Date: 02 March 1955
• Docket Number: No. 18560,18560
• Citation: 125 Ind.App. 293,124 N.E.2d 874
• Parties: Edna Hurston MILLER, By Her Next Friend, Velma W. Miller, Appellant, v. Richard SMITH, Appellee.
• Court: Indiana Appellate Court

Page 874

124 N.E.2d 874

125 Ind.App. 293

Edna Hurston MILLER, By Her Next Friend, Velma W. Miller, Appellant, v. Richard SMITH, Appellee.

No. 18560.

Appellate Court of Indiana, In Banc.

March 2, 1955.

Grace B. DeArmond, Lawrence Booram, Anderson, Worth H. Castor, Noblesville, for appellant.

Busby, Davisson & Cooper, Anderson, Christian, Waltz & Klotz, Noblesville, for appellee.

KELLEY, Chief Judge.

On December 4, 1950, appellant, Edna Hurston Miller, was a guest passenger in an automobile operated by appellee at the time said automobile and a locomotive of the Nickel Plate Railroad collided at the intersection of the tracks of said railroad with Kilgore Avenue in the City of Muncie, Indiana. This action was brought by said appellant against appellee to recover damages for personal injuries allegedly sustained by appellant as a result of said collision.

At the conclusion of appellant's evidence, the court, upon appellee's motion, directed the jury to return a verdict for appellee. Such verdict was duly returned and judgment for appellee was rendered thereon. Appellant asserts, in varying ways, that the court erred in directing said verdict. Whether it did or not is the sole question for our consideration.

Appellant's amended complaint, in substance, charges the appellee with wanton and wilful misconduct in the operation of said automobile at the time alleged. The parties contend as to one point only and that is the sufficiency of the evidence to establish wanton or wilful conduct on the part of appellee. However, we are inclined that the true inquiry is whether, considering only such evidence and inference as is favorable to appellant, there was any evidence which should have gone to the jury on the issue; or, stated differently, whether there was a total absence of evidence and inference in favor of appellant as to the alleged wanton or wilful misconduct of appellee.

Before reciting the evidence, we pause to observe that this action is predicated upon Ch. 259, Acts 1937, Sec. 1, page 1229, Sec. 47-1021, Burns' 1952 Replacement, and that our Supreme Court in defining the meaning of the words 'wanton' and 'wilful', as used in said Act, held them to be 'closely synonomous'. Bedwell v. DeBolt, 1943, 221 Ind. 600, 606, 50 N.E.2d 875.

The record discloses the following evidence given on behalf of appellant in support of her complaint, which is deemed amended to conform thereto: The Nickel Plate Railroad tracks, four in number, run in a northwesterly and southeasterly direction, and cross State Highway 32, which is known as Kilgore Avenue, within the city limits of Muncie, Indiana. Kilgore Avenue is 18 to 20 feet wide and extends east and west. There is a signal cross-arm at the northeast corner of said intersection which, from the photographs in evidence, is affixed to the top of an upright post of sufficient height that the cross is observable from the highway. There is a street light which overhangs said crossing, which was burning the night of the accident.

At about 9 o'clock p. m., on the 4th day of December, 1950, appellee, operating a Chevrolet automobile occupied by himself, as driver, the appellant on his right in the front seat, and two other persons in the rear seat, was proceeding into said City of Muncie from the west on said Kilgore Avenue. Appellant was a guest passenger. The weather, at said time, was fair but cool. There was no snow, ice or water on the ground. At that time a train on the main track was entering said intersection from the southeast at a speed of about 15 miles per hour.

Appellant testified, in part: 'I got in the car and sat on the right front seat. * * * We then headed in the car for Muncie over State Road 32, traveling about 50 miles per hour. There are a lot of curves to the road. I do not remember Mr. Smith slackening the speed of his car after we entered the city limits of Muncie. As we approached the Nickel Plate tracks * * * there was a car stopped ahead of us. Smitty (appellee) pulled out around it. I screamed. I think the watchman was standing out there. That is the last I remember.'

Atwood R. Allen said, under oath, that about 8:40 o'clock p. m., the evening of December 4, 1950, he left his home in a truck to go to a filling station across the tracks. * * * 'As I drove onto Kilgore Avenue from Second Street I saw a train coming out of town from the east. I knew a train was approaching because the light was working. * * * Besides the oscillating light the head light was burning. * * * The bell was ringing, I heard the train blow its whistle * * * approximately 400 feet from the intersection. I stopped my truck 15 feet on the north side of the tracks, headed toward Anderson * * *. I saw the watchman at the crossing standing in the center of the street about 7 feet to the left ahead of my truck. * * * He had a light in his hand and a stop sign. It was a bright lantern, a big one, big enough to see for a distance, and * * * a red color. The watchman was swinging that lantern giving signal for oncoming traffic to stop. Directly across the tracks I saw one motor vehicle which had * * * stopped for the train. * * * its lights were burning.

'The lights of my truck were burning. As the train was almost in the intersection a car was coming into Muncie from the west on the opposite side of the tracks from me, at a speed of 35 miles or faster. He swung out to the left from the car already stopped for the train onto the left hand side of Kilgore Avenue and drove in front of the train which was then in the intersection. * * * He didn't slack his speed as I could see. * * * That watchman * * * jumped astraddle the radiator of my car, in fact he jumped to keep from getting hit by the car that was struck by the train. * * * A street light was burning that night near where I stopped and provided illumination for that point of Kilgore Avenue. * * * There were stop, look, and listen signs at that intersection.'

Roy Hahn, watchman at the crossing gave testimony, in part as follows: '* * * As the train approached the crossing I heard the engineer blow all his signals, signal whistle, bells was ringing. There was a regular light and an oscillating light burning on the locomotive. * * * When I saw and heard it (the train) I picked up a lantern * * *. It was a regular flagman's oil lantern with an amber globe. I also had a whistle in my hand. * * * I swung the lighted lantern and blew my whistle. * * * The lights were burning on that car (the car which was stopped at the crossing in front of appellee's car) and also the truck. I saw a car approach which I later learned was driven by Mr. Smith (appellee). When I first saw him he was about 12 feet from the main track. He was just passing the other car that was stopped and coming upon the tracks. I swung my lantern and blew my whistle, but he continued to cross the tracks. He was so close I tried to get away. I jumped and climbed over the truck...