New York, C. & St. L. R. Co. v. Robbins

• Decision Date: 15 December 1905
• Docket Number: No. 5,415.,5,415.
• Citation: 38 Ind.App. 172,76 N.E. 804
• Court: Indiana Appellate Court
• Parties: NEW YORK, C. & ST. L. R. CO. v. ROBBINS.

38 Ind.App. 172

76 N.E. 804

NEW YORK, C. & ST. L. R. CO.

v.ROBBINS.

No. 5,415.¹

Appellate Court of Indiana, Division No. 1.

Dec. 15, 1905.

Appeal from Circuit Court, Whitley County; Luke H. Wrigley, Special Judge.

Action by Elam Robbins, administrator, etc., against the New York, Chicago & St. Louis Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Olds & Doughman, for appellant. A. A. Adams, Bertram Shane, P. S. Webster, A. G. Wood, and F. E. Bowser, for appellee.

ROBINSON, J.

In appellee's second paragraph of complaint for damages for the death of his decedent it is averred that appellant, by its servants, negligently drove the engine and train at an excessive and dangerous rate of speed; that the whistle was not sounded, as required by statute; that the bell was not rung; and that the accident was causedby the “negligence of said defendant and its said servants as aforesaid.” The complaint does aver several acts of negligence, but it does not proceed upon the theory that the injury was the result of the combined effect of all the acts of negligence charged. Negligence would be established by showing that appellant failed to give the signals required by statute, whether any other acts of negligence that might be charged should be made out by the proof or not. The fact that the pleading says that the accident was caused by the negligence “as aforesaid” does not necessarily mean that the accident was caused by all the acts of negligence charged. In Southern Ry. Co. v. Jones (Ind. App.) 71 N. E. 275, cited by appellant, the complaint charged as negligence the use of defective brakes and running the train in excess of the speed limited by a city ordinance. The allegation was “that by reason of the carelessness and negligence of said defendant in failing and neglecting to properly and securely supply said caboose with good, sound, safe, and secure appliances, whereby the speed of the same could be controlled, and by reason of the carelessness and negligence of said defendant in running its said train at such high rate of speed, to wit, twenty miles per hour, within the corporate limits of said city of Huntingburg, and thereby causing said collision as aforesaid, he received his said injuries, and not otherwise.” It was held that the injury is stated to be due to the two causes named. The court recognizes the rule that, as a general rule, all acts of negligence averred need not be proved; but says: “It is not averred that the brake would have been insufficient to check the caboose if it had been going at the rate of only eight miles an hour (the ordinance rule). It may be fairly inferred that if the caboose had not been going at an unlawful rate of speed the brakes would not have been insufficient, or that, if the brakes had not been defective, the high rate of speed could have been checked; in other words, the high rate of speed rendered the brakes useless.” There is no necessary connection between the several acts of negligence attempted to be charged, and there is nothing in the pleading to indicate that it proceeds upon the theory that all the acts of negligence charged combined caused the accident. If the attempted charges of negligence, aside from the charge of failure to give the statutory signals, should be omitted from the pleading, the averment that the accident was caused by the negligence “as aforesaid” would be applicable. We see nothing in the pleading to take the case out of the general rule that has long prevailed that a plaintiff may plead in one paragraph different acts of negligence, and upon the trial it is sufficient if he prove such negligence charged as will establish his case, and this may be a single act of negligence. There was no error in overruling the demurrer to the second paragraph of complaint.

Under the motion for a new trial it is first argued that the evidence fails to show appellant guilty of negligence. The court instructed the jury that there was no evidence before them that would warrant them in finding for appellee on the ground that appellant was negligent as to ringing the engine bell, or as to the rate of speed at which the train moved as it approached the crossing. In another instruction the jury were told that the only ground upon which, if at all, appellant could be held liable, was negligence in failing to sound the whistle, as required by statute. The accident happened at a crossing east of the town of Kinzie. There is another north and south highway crossing in Kinzie. It is 2,855 feet between the two crossings. About 1,500 feet west of the east crossing, where the accident happened, is the whistling post for that crossing. Witnesses who lived at Kinzie and in the vicinity testified as to the sounding of the whistle. A number of witnesses testified positively that the whistle was sounded and that they heard it. Other witnesses testified that the whistle was not sounded, that they were where they could have heard it if it had been sounded, and that they did not hear it. It is insisted by counsel for appellant that the evidence of witnesses who testified that they did not hear the signals, and from that fact state that the signals were not given, is overcome by the positive evidence of witnesses that the signals were given. It cannot be said, however, that the testimony of all of appellee's witnesses upon the question of signals was purely negative. One of these witnesses testified that as she approached the crossing on the north and south road she heard the signal for that crossing, that she saw the train, and stopped 10 or 15 feet from the track and waited for the train to pass and immediately walked on and watched the train until it got out of sight, and that she had gone just a little way when she heard the three whistles. Another witness, mother of the station agent, testified that she lived about 70 feet from the track, just east of the station, and was sitting on her porch and saw the train go by. She heard it approaching from the west; it whistled for the west crossing; that she did not hear any whistle for this crossing, but heard it give three whistles; did not know what that meant, and walked out toward the railroad and saw the agent and asked him. Another witness testified that he was in a buggy, driving north on the north and south road, and was about 80 rods south of the railroad, when the train passed through Kinzie; that it did not whistle for the east crossing; that it gave three sharp blasts after it passed the crossing; that he was paying particular attention to the train, as he was watching to see if his brother-in-law, who was traveling at that time, would not come home that night; and that he noticed if the train would whistle or if it was slacking in speed. It cannot be said that this evidence was of a purely negative character. The jury could properly give more weight to such testimony than to the testimony of witnesses who simply testified that they did not hear the signals, but were where they could have heard them had they been given. “It may be true,” said the court, in Ohio, etc., Ry. Co. v. Buck, 130 Ind. 300, 30 N. E. 19, “in fact, that, under some circumstances, greater weight should be given to the positive statement of one witness than to the negative statement of another, but it depends upon the circumstances, and is not true as an abstract proposition of law. ***” And in the case at bar the circumstances surrounding these witnesses at the time when they say that the signals were not given take from their testimony something of its negative character, and, while their testimony under such circumstances would not be entitled to as much weight as the testimony of witnesses who state positively that they heard the signals given, yet, with this evidence, it cannot be said that there was no evidence authorizing the jury to say that the signals were not given. As we view this testimony, we could not disturb the jury's conclusion without weighing the evidence, and this we cannot do.

It is also argued that decedent was guilty of contributory negligence. At the crossing the highway and...