Murphy v. Indiana Harbor Belt R. Co.

• Citation: 154 Ind.App. 103,289 N.E.2d 167
• Decision Date: 16 November 1972
• Docket Number: No. 1271A250,1271A250
• Parties: Florence MURPHY, as Administratrix of the Estate of Thomas E. Chizk, Deceased, Appellant, v. INDIANA HARBOR BELT RAILROAD COMPANY, Appellee.
• Court: Court of Appeals of Indiana

Page 167

289 N.E.2d 167

154 Ind.App. 103

Florence MURPHY, as Administratrix of the Estate of Thomas

E. Chizk, Deceased, Appellant, v. INDIANA HARBOR BELT RAILROAD COMPANY, Appellee.

No. 1271A250.

Court of Appeals of Indiana, Third District.

Nov. 16, 1972.

Saul I. Ruman, Hammond, for appellant.

Harold Abrahamson, Crumpacker, Abrahamson & Reed, Hammond, for appellee.

SHARP, Judge.

This case was previously considered on a preliminary matter. See Murphy v. Indiana Harbor Belt Railroad Co., Ind.App., 284 N.E.2d 84 (1972). We now consider it on its merits.

On June 15, 1965 the Plaintiff-Appellant's decedent was killed in a collision between an automobile in which he was riding and one of Appellee's trains at a crossing located in Hammond, Indiana. The Appellant's complaint was in two legal paragraphs, one based on negligence in operating the train and the second based on wilful and wanton misconduct in installing and maintaining automatic controls at said crossing which permitted an automobile to enter said crossing before the signals became operative and before the gates were lowered and before the highway could be cleared of traffic. The Appellee's answer was in admission and denial and also set forth five affirmative defenses, including the defense of contributory negligence.

The case was tried before a jury which returned a verdict against the Appellant on both paragraphs of complaint. This appeal has followed the overruling of Appellant's motion to correct errors.

The Appellant has preserved and argued certain errors of law which she contends are the basis of reversal.

The facts, with all inferences in the light most favorable to the Appellee, disclose that the decedent and two other men attended a union meeting in East Chicago on the evening of June 15, 1965, after which the decedent requested a ride home with one J. C. Talley. The decedent did not have an operator's license since his had been revoked prior to the accident. The decedent was paying J. C. Talley $2.00 per week to drive him to and from work. At about 11:00 P.M. the decedent and two other men drove from the union meeting place, where a strike vote had been taken, to a tavern in East Chicago, stayed about an hour and consumed two beers each. They then went to another tavern at the suggestion of the decedent. The three left the tavern to go home with J. C. Talley driving, the decedent in the middle of the front seat, and one Billy Howell in the right front seat. They proceeded to Columbia Avenue in Hammond, Indiana, upon which they traveled southbound until the accident occurred. It was necessary to take this route to accommodate the decedent by taking him home. It was a clear night and the pavement was dry and there was very little traffic. Columbia Avenue consisted of two lanes northbound and two lanes southbound, the two inner lanes being asphalt and the two outer lanes concrete. Six sets of railroad tracks intersected Columbia Avenue at the site of the collision. Approximately one block north of the railroad tracks in question, Columbia Avenue is intersected by an east and west street known as 150th Street which is controlled by automatic traffic signals. Between 150th Street and the crossings there are no controls for traffic other than a 30 mile an hour speed limit sign. On the righthand side of Columbia Avenue facing southbound traffic there was a sign reading: 'Danger, Railroad, Crossing 400 feet. Stop, Look, Listen.'

The railroad crossing in question consisted of, from north to south, automatic signals and gate; two sets of tracks owned by the Elgin, Joliet & Eastern Railroad, separated by approximately 18 feet; pavement of approximately 43 feet; four sets of tracks owned by the defendant separated by approximately 8 feet each, with a spur line entering from the west and connecting to the southernmost track at about the curbline; and, an automatic signal and gate. The circuit breaker for activating the automatic signals and gates was located on the spur line approximately 65 feet from the curbline. Located at the crossing were city installed mercury vapor lights. There was no signal bell at the crossing. The circuit breaker immediately activated the signal flashers which remained on three seconds before the gates began to lower. The gates lowered in eleven seconds. The defendant owned the train involved in the collision and it was being operated over a track also owned by the defendant. The train consisted of a diesel switch engine and 11 loaded cars. Instructions for operating the train consisted of a timetable indicating a crossing speed limit of 20 miles per hour, a headlight display and a bell ringing.

J. C. Talley who operated the car in which the decedent was a passenger testified he had stopped for a stoplight at 150th Street and then proceeded southbound on the inner lane as 30 miles per hour. He was familiar with the crossing since he was a resident in the general area.

The fireman on the train testified that the train had proceeded to the circuit breaker which activated the automatic signals and stopped for fifty or sixty seconds and then proceeded at two or three miles per hour and was on the crossing before the impact occurred. The fireman testified that he had observed an automobile between 150th Street and the gates after the train had started to move from a point near the west curbline of Columbia Avenue. The gates were horizontal before the car reached the crossing. He next observed the car inside the gates swerve to the right and accelerate. He yelled to the engineer to stop and reached for the emergency brake belt. The engineer immediately applied the brakes. J. C. Talley testified he heard someone yell and a collision occurred with the train coming to a stop approximately five to eight feet from the east curbline of Columbia Avenue with the automobile facing southwest in the same general vicinity. The train sustained damage to the front steps and scratch marks on the side of the train beginning three to five feet from the front. The parties stipulated that the plaintiff's decedent died as a result of the collision.

I.

The Appellant's first assertion of error is based on the following part of the record which occurred during the direct examination of Paul Chartos, a Hammond Police Officer, called as a witness on behalf of the Appellant:

'Q Now, I will ask you again, have you had opportunities or occasions prior to the night of your investigation to observe engines and gates at a time when an engine was entering that?

A I have.

MR. ABRAHAMSON: To which we're going to object. I wonder if we might argue out of the presence of the jury.

THE COURT: At this time, we just will have a yes or no answer.

Q Would you tell us what you have observed with regards to the proximity and time to the engine or train entering the street and the gates coming down to block the street on prior occasions?

MR. ABRAHAMSON: To which we are going to object, and we would like to be heard on the subject out of the presence of the jury.

THE COURT: Take the jury out. This will be off the record.

(Argument heard off the record--some of the argument appears in the record, but not in its entirety.)

THE COURT: The record will show that the question is withdrawn, the objection withdrawn and the stipulation, two stipulations are made and we'll call the jury, I'll read them that stipulation.

I'll tell them the parties, regarding the last question, the parties have made the following stipulation.

JURY BROUGHT INTO COURT. Ladies and Gentlemen, regarding the last question, the parties have made a stipulation which is as follows: The parties stipulate that for an eastbound train on track number 6, as the evidence indicates the train in question here was located, there is a circuit breaker 64 feet, 6 inches west of the west edge of the pavement Columbia Avenue, as shown by the exhibit in evidence; that when a locomotive reaches that circuit breaker, it starts a process that activitates (sic) the flashers and gates which are located both to the north and to the south of the crossing in question; that the flashers begin to flash and that at or about the same time, the gate begins its descent; that the length of time required for the gate to come down to the full horizontal position is 11 to 14 seconds and that if a locomotive proceeded from the circuit breaker out on to the crossing without the 11 to 14 seconds having elapsed, that the locomotive would be on the crossing and the gates not yet at their full horizontal or down position. The parties further stipulate that on certain occasions prior to June 15th, 1965, and on certain occasions, subsequent to June 15th, 1965, that a locomotive or cars operated by the defendant, Indiana Harbor Belt Railroad, have been on the crossing prior to the time the gates reached their full horizontal or down position.

Q Following the investigation of this accident, did you have occasion to return to that scene?

A Yes, I did.

Q Let me ask you, at that time did you observe trains on any of the tracks when you went there, without going into detail, this can be answered yes or no.

A Yes, I did.

Q Was it I.H.B. trains?

A Yes, sir, it was.

Q And on which track?

A On the track number 6.

Q Coming from which direction?

A Going from west to east.

Q And did you stay there and observe what took place at that point?

A I did.

Q Now don't answer the next question, please, because they want to object. Would you tell us what happened at that time?

MR. ABRAHAMSON: I think we're going to object if the Court please, on the ground what took place with some train subsequent is not material to any of the issues in this case. Further, I thought we reached an agreement. I thought we had a stipulation entered into during the noon hour so that we didn't have to be raising these objections during these proceedings.

THE COURT: Make your offer to prove.

MR. RUMAN: We offer to prove that the witness would testify in response to that...