New York, C. & St. L.R. Co. v. Martin
| Decision Date | 14 December 1904 |
| Docket Number | No. 4,971.,4,971. |
| Citation | 72 N.E. 654,35 Ind.App. 669 |
| Court | Indiana Appellate Court |
| Parties | NEW YORK, C. & ST. L. R. CO. v. MARTIN. |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Fulton County; Harry Bernetha, Judge.
Action by Mary A. Martin against the New York, Chicago & St. Louis Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed.
Olds & Doughman, for appellant. I. Conner, Lairy & Mahoney, and M. Winfield, for appellee.
This cause was commenced in the Marshall circuit court, from which the venue was changed to the court below. The appellee, Mary A. Martin, sued the appellant to recover damages for a personal injury. A demurrer to the complaint for want of sufficient facts was overruled. In the complaint, after preliminary matter, it was alleged, in substance, that the appellant's railroad passed through the county of Marshall and the town of Argos, in that county; that about one-half mile east of the town a public highway, running north and south, intersected and crossed the track of the appellant; that, as this highway approached the right of way, another highway connected with the former highway, and ran thence east; that it intersected with the north and south highway at a point immediately north of the railway track, and within 14 1/2 feet from the center of the track, and extended thence east almost parallel with the railroad track, and in close proximity to it; that the appellee was a farmer's wife, and lived with her husband about 5 miles east of Argos, which was her market town, and she frequently was required to go to the town with horse and buggy, and her nearest and best route, which she always traveled, was along the highway aforesaid; that just east of the point where the east and west highway connected with the north and south highway there was a deep cut, made by the appellant for its track, through which the trains passed going east and west; that the north and south highway, as it approached the appellant's track, was on low ground, and the ground east thereof and toward the appellant's track rose, and, because of this elevation and the cut and intervening obstructions of fences and trees, it was impossible, as a person approached the track, to see a train coming west into the cut; that May 5, 1900, the appellee had driven with a horse and buggy to Argos, and, after attending to her business, she started to drive home, and drove south on the north and south highway, intending to turn north of the crossing on the highway east, her usual route to her home, and, when within about 60 feet from the east and west highway, she stopped her horse and looked and listened for approaching trains; that she did not want to risk driving her horse on the east highway, which at that point was along the north side of appellant's right of way, if a train was approaching; that, hearing and seeing no train approaching, she started her horse forward, and, just as she reached the intersection of the two highways and was turning east, a train of cars propelled by a steam locomotive came out of the cut from the east, and by reason of its proximity her horse became frightened, and ran and threw the appellee out of the buggy with great force and violence upon the ground, whereby, etc. (describing her injury); that the appellant's agents and servants in charge of and operating the train were careless and negligent, in that no whistle was sounded, no bell was rung, nor was there any other warning given of the approach of the train; that the appellant's agents and servants in charge of the train did not sound the whistle for the highway crossing at all, nor did they ring the bell; that, had the whistle been sounded at any point not more than 100 rods nor less than 80 rods east of the highway crossing, and had the bell been rung continuously from such point of sounding the whistle until the engine had entirely crossed the highway, the appellee would have heard the same, and would not have approached within dangerous proximity to the railroad, and would have avoided the injury; that she was induced to approach the railway, and drive her horse into a place where he afterward so became frightened, solely by reason of the negligent failure on the part of the appellant and its agents and servants to ring the bell and sound the whistle as aforesaid; and that she was injured as before described solely by reason of the fault and negligence of the appellant in failing to ring the bell and sound the whistle as aforesaid, wherefore, etc. The complaint does not proceed upon the theory that the appellee's horse was frightened by any unusual or unnecessary appearance or noise, or any negligent or willful act or omission in connection with the operation of the train; but it relies upon the assumed liability of the appellant for failure to give the statutory signals at the time and the place prescribed by the statute, whereby the appellee was without warning of the approach of the train, and was induced to drive into dangerous proximity to the approaching train, whereas otherwise she would not have gone to such place, and would not have been injured. There are some allegations concerning the physical surroundings inserted to show want of contributory fault on the part of the appellee, while the only negligence attributed to the appellant as the cause of the injury, without which it would not have occurred, is the violation of the duty imposed by the statute providing for the signaling of the train's approach to the crossing of the railroad track on the north and south public highway. There was no collision of the train with the appellee or her horse or buggy. She was not traveling toward the railroad crossing with a purpose to cross the railroad track, but, having come from the north, she was purposely turning from the north and south highway into the east and west highway north of the crossing, with the purpose of pursuing her journey along the latter road eastward, and nearly parallel with the railroad, when her horse took fright at the train approaching the crossing from the east.
No question is presented as to the failure of the...
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