Miller v. The Terre Haute And Indianapolis Ry. Co

• Citation: 43 N.E. 257,144 Ind. 323
• Decision Date: 24 March 1896
• Docket Number: 16,922
• Parties: Miller v. The Terre Haute and Indianapolis Ry. Co
• Court: Indiana Supreme Court

43 N.E. 257

144 Ind. 323

Miller v. The Terre Haute and Indianapolis Ry. Co

No. 16,922

Supreme Court of Indiana

March 24, 1896

From the Marion Superior Court.

The judgment is affirmed.

Claypool & Claypool, for appellant.

Miller Winter & Elam, for appellee.

OPINION

Hackney, C. J.

The appellant sustained personal injuries at a crossing of a highway and the appellees' road, five miles west of Indianapolis. He had driven west over the crossing an hour or two before and was returning east when one of appellees' freight trains ran upon his conveyance and caused said injuries. The crossing was approached by the appellant over the highway upon a line running directly east while the train approached it upon a line bearing slightly north from an easterly course. He and his companion conversed together without looking or listening for the approach of the train and unmindful of the presence of the crossing until the noise of the train and the crash of the collision came simultaneously upon them. The course of the train varied so slightly from that of the appellant that it came upon him but a little to the right from the rear of his vehicle. For the distance of at least eight hundred feet west of the crossing the railway and the train could have been seen from the highway at any point thereon within several hundred feet of the crossing. The evidence would probably have supported a finding that the appellees were negligent in failing to sound the whistle and ring the bell, as required by the statute. R S. 1894, section 5307 (R. S. 1881, section 4020), Acts 1879 p. 173. The court having instructed the jury to return their verdict in favor of the appellee, the only question presented by the record and argument of counsel is upon the nonexistence of contributory negligence.

That it is the general rule that no recovery may be had for an injury from negligence where the injured party, by his own negligence has contributed to the injury, is not questioned. Nor is the application of that rule in this case directly questioned, though the insistence of the appellant's learned counsel implies, necessarily, we think, that the rule has no application where the injury results from a failure to give the statutory signals of approach to highway crossings. The argument is that since the statute requires the signals, the traveler may pursue his way, relying upon the railway company to comply with the requirement. In support of this argument counsel cite Pittsburg, etc., Ry. Co. v. Martin, 82 Ind. 476, where this court said: "The court is bound to take notice of this law. The plaintiff had a right to believe the defendant would obey it," and they cite, also, the case of Cleveland, etc., Ry. Co. v. Harrington, 131 Ind. 426, 30 N.E. 37, where this court said: "In the absence of some evidence to the contrary, we think the appellee had the right to presume that the appellant would obey the city ordinance and would not run its trains at a greater rate of speed than four miles an hour at the point where the injury occurred, and while the wrongful conduct of the appellant in this regard would not excuse her from the exercise of reasonable care, yet in determining whether she did use such care her conduct is to be judged in the light of such presumption. If when she looked to the north four hundred feet and saw no train, she knew that she could cross the tracks in safety before a train running at the speed fixed by the city ordinance could reach her from that direction, it would be a harsh rule which would adjudge her guilty of negligence because she was struck by a train moving nearly five times as fast as the speed fixed by the ordinances of the city, which she had a right to presume the appellant would obey." In the first of the cases cited the train approached the highway crossing through a cut forty rods long and varying in depth from three to twelve feet, and a view of it from the highway was obstructed until the traveler came near the track. Although the plaintiff in that case looked for the train, he did not see it until his team came within two feet of the track, and when it was within ten rods of the crossing and running at the rate of twenty-five miles per hour.

Either case is distinguishable from the present in the fact that some care was exercised by the injured party, and there were attending conditions and circumstances which rendered such care more or less unavailing, while in the present case there was no care on the part of the appellant and the situation was such that slight care would have enabled him to avoid the collision.

In Cincinnati, etc., R. R. Co. v. Howard, 124 Ind. 280 (8 L.R.A. 593, 24 N.E. 892), it was said of the Martin case that it "is not in harmony with the earlier cases, and is out of line with those more recent," etc. This criticism was in relation to the question of contributory negligence, and was certainly intended to deny the correctness of the contention that a reliance upon the duty of the railway company to give the signals required by law would excuse the traveler upon the highway from the duty to look and listen for trains before...