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

• Decision Date: 27 March 1957
• Docket Number: No. 18888,18888
• Citation: 141 N.E.2d 355,127 Ind.App. 301
• Parties: The NEW YORK, CHICAGO AND ST. LOUIS RAILROAD COMPANY, a Corporation, Appellant, v. Carl LAUDENSLAGER, Appellee.
• Court: Indiana Appellate Court

Page 355

141 N.E.2d 355

127 Ind.App. 301

The NEW YORK, CHICAGO AND ST. LOUIS RAILROAD COMPANY, a Corporation, Appellant, v. Carl LAUDENSLAGER, Appellee.

No. 18888.

Appellate Court of Indiana, In Banc.

March 27, 1957.

Batton, Harker & Rauch, Marion, Emerson J. Brunner, Shelbyville, Harker & Irwin, Frankfort, Clay Marsteller, Cleveland, Ohio, of counsel, for appellant.

Locke, Reynolds, Boyd & Weisell, Hugh I. Watson, Indianapolis, Pell & Matchett, Wilbur F. Pell, Jr., Shelbyville, for appellee.

COOPER, Judge.

This is an action to recover for property damage and resulting damage alleged to have been sustained by the appellee, Carl Laudenslager, in a collision between a motor vehicle driven by the appellee's employee and a railroad train operated by the appellant, the New York, Chicago and St. Louis Railroad Company, a corporation, allegedly due to the negligence of the appellant.

The appellee filed a complaint in ten rhetorical paragraphs. The appellant filed a Motion to Strike Out Specific Allegations, which said Motion was overruled by the court. Thereafter, the appellant filed his demurrer to certain clauses of rhetorical paragraph seven of appellee's cause of action based upon purported negligence alleged in the complaint. The trial court overruled the demurrer and the appellant thereafter filed an answer in two paragraphs which included specific denials and alleged contributory negligence of the appellee and the appellee's employee.

The cause was tried by a jury, and, at the close of all the evidence, the appellant filed a Motion for a Directed Verdict. The trial court overruled the appellant's motion for a directed verdict and the jury found for the plaintiff on his complaint in the sum of $3,200. The appellant filed his motion for a new trial, which was overruled by the trial court, and this appeal followed.

Error assigned for reversal is the action of the trial court in overruling the appellant's motion for new trial. The grounds of the appellant's motion for new trial are as follows: (1) The verdict of the jury is not sustained by sufficient evidence; (2) The verdict of the jury is contrary to law; (3) The verdict of the jury is not sustained by sufficient evidence and is contrary to law; (4) The court erred in giving to the jury over objections of the defendant instructions numbered 2, 6, 7, 8, 9, 10 and 11, and each of them, separately and severally, tendered and requested by the plaintiff. Wherefore, the defendant prays for a new trial.

In the appellant's assignment of errors, it is stated that there are manifest errors in the proceedings and judgment for the following reasons:

(1) The court erred in overruling the appellant's motion to strike specific allegations of complaint filed in said cause.

(2) The court erred in overruling appellant's demurrer filed in said cause.

(3) The court erred in overruling appellant's motion for directed verdict filed at the close of all the evidence.

(4) The court erred in overruling appellant's motion for a new trial.

From the record it appears that the accident in question occurred at the intersection of East Thirty-Eighth Street, or State Road No. 67, and the appellant's railroad in Indianapolis, Indiana, on November 2, 1950, at about 11:30 p. m. Thirty-Eighth Street extends east and west, and the appellant's railroad tracks, or right-of-way, extends in a northeasterly and southwesterly direction at an angle of about 65~. The collision involved a tractor-trailer, owned by the appellee in which he was riding, the same being driven by his employee. The tractor-trailer was traveling east on Thirty-Eighth Street, and the steam locomotive and the attached tender were backing in a northeasterly direction with one coal car attached to the front end of the engine.

The appellant contends the trial court erred in overruling its motion to strike out parts of the appellee's complaint. The appellant's motion to strike out affirmatively shows on its face that said motion does not comply with Rule 1-2A of the Supreme Court of Indiana. Also, it is a general rule that there can be no reversible error in overruling a motion to strike out parts of any pleading. Hire v. Pinkerton, 1955, Ind.App., 127 N.E.2d 244, 249; Lowe's Revision of Works' Indiana Practice, § 23.30, and authorities cited.

The appellant's second assigned error is that the court erred in overruling the appellant's demurrer filed in said cause. The appellant's demurrer and memorandum read as follows:

'The defendant demurs to the purported causes of action set out in the complaint based upon purported negligence alleged in clauses A, C and H of rhetorical paragraph 7, and demurs to the purported causes of action based upon each of said allegations, separately and severally, for the reason that no one of said purported causes of action states facts sufficient to constitute a cause of action, for the reasons set out in the memorandum hereto attached and made a part hereof.

'Memorandum

'Each of the specifications of negligence referred to in the foregoing demurrer is based upon the absence of crossing protection in the intersection in question. There is no duty on a railroad company to furnish crossing protection at a crossing in the absence of an ordinance requiring same, and negligence cannot be predicated upon failure to do so.' (See cases cited.)

'In rhetorical paragraph 6 plaintiff pleads an ordinance, which refers to crossings where protection is required, but plaintiff does not plead any ordinance requiring crossing protection at the crossing in question.'

Sub-paragraph A of the appellee's complaint alleges:

'Failure to maintain automatic warning signals at a railroad crossing in working condition.'

Sub-paragraph C of the appellee's complaint alleges:

'Failure to have operable automatic warning signals at a railroad crossing to warn travelers on said Highway No. 67 of the approach of a train.'

Sub-paragraph H of the appellee's complaint alleges:

'Permitting an engine to be run backwards without providing a watchman on the rear end of such engine to warn person of its approach.'

Clauses C and H of rhetorical paragraph 7 were withdrawn from the consideration of the jury by the instructions of the court, and, therefore, no harm has resulted to the appellant in the overruling of its demurrer as to said clauses C and H.

The demurrer as to clause A of rhetorical paragraph 7 of the complaint is upon the sole basis as shown by the memorandum filed with the demurrer, that the appellant was under no duty to 'furnish' crossing protection, said clause A as we have before noted does not count upon the appellant's failure to furnish crossing protection, but upon the appellant's failure to 'maintain' automatic warning signals at the crossing, in working condition. The law is very clear in Indiana that once such equipment is installed the appellant has the duty to use due care in seeing that the warning devices operate properly. Lake Erie & W. R. Co. v. Howarth, 1919, 73 Ind.App. 454, 480, 481, 124 N.E. 687, 127 N.E. 804; Wabash R. Co. v. McNown, 1912 (T.D. 1913), 53 Ind.App. 116, 99 N.E. 126, 100 N.E. 383; Gillies v. New York Cent. R. Co., 1954 (T.D.1954) 124 Ind.App. 382, 116 N.E.2d 555; 75 C.J.S., Railroads, § 792, p. 61. Thus, it is apparent that there was no error by the court in overruling said demurrer as to said clause A for the reason that there was no valid grounds advanced by the appellant in the memorandum attached to the demurrer.

The appellant contends that the court erred in overruling its motion for a directed verdict and in refusing to give the jury defendants peremptory instruction number one at the conclusion of all the evidence.

We have said in the case of Kempf v. Himsel, 1951, 121 Ind.App. 488, 98 N.E.2d 200, 204,

'If the facts are in dispute, or if reasonable men may draw a different conclusion from undisputed facts, the question of negligence is one for the jury; but if the facts are not in dispute, or if the facts most favorable to the proponent, together with all reasonable and logical inferences that may be drawn therefrom be assumed as true, and reasonable men could draw only one inference from such assumed facts and inferences, then the question of negligence becomes one of law for the court. Gamble v. Lewis, 1949, 227 Ind. 455, 85 N.E.2d 629,' and other authorities cited.

'Likewise, the question of proximate cause is generally a question for the jury to determine, but it may become a question of law for the court under the same circumstances that negligence becomes a question of law. Gamble v. Lewis, supra' and other authorities cited.

'In passing upon a motion for a directed verdict in a negligence action, the court is merely called upon to determine if there is some evidence of negligence on the part of the defendant which the jury is entitled to consider in deciding that issue, or if the undisputed evidence discloses that plaintiff was guilty of negligence that proximately contributed to his injury or death. Baltimore & Ohio R. Co. v. Reyher,' 1939, 216 Ind. 545, 24 N.E.2d 284.

'On appeal, when the sufficiency of the evidence is questioned, we do not weigh the evidence, but we examine the record to see if there is any evidence, or any reasonable or logical inference which may be drawn from the evidence, which if believed by the jury would sustain the verdict. Gamble v. Lewis, supra; Butterfied v. Trittipo, 1879, 67 Ind. 338, 342; Indiana Ins. Co. v. Handlon,' 1940, 21l Ind. 442, 24 N.E.2d 1003.

A concise statement of the pertinent evidence most favorable to the appellee is that the tractor-trailer owned by appellee and driven by his employee proceeded upon a highway known as U. S. No. 67 to the intersection of East Thirty-Eighth Street in Indianapolis, Indiana. At said intersection the tractor-trailer made a left-hand turn and proceeded over a bridge on East Thirty-Eighth Street, in low gear, to the place where the railroad tracks of the appellant intersect East...