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

• Decision Date: 12 December 1957
• Docket Number: No. 29614,29614
• Citation: 146 N.E.2d 531,237 Ind. 456
• Parties: NEW YORK, CHICAGO AND ST. LOUIS RAILROAD COMPANY, Appellant, v Ollie J. HENDERSON, Appellee.
• Court: Indiana Supreme Court

Page 531

146 N.E.2d 531

237 Ind. 456

NEW YORK, CHICAGO AND ST. LOUIS RAILROAD COMPANY, Appellant, v Ollie J. HENDERSON, Appellee.

No. 29614.

Supreme Court of Indiana.

Dec. 12, 1957.

Rehearing Denied Jan 15, 1958.

See 147 N.E.2d 237.

Batton, Harker & Rauch, Marion, DeVoss, Smith & Macklin, Decatur, Harker, Irwin & Campbell, Frankfort, Clay Marsteller, Cleveland, Ohio, of counsel, for appellant.

Nieter & Smith, Dan C. Flanagan, Fort Wayne, for appellee.

Gerald G. Fuchs, John J. Jennings, Evansville, amicus curiae.

ARTERBURN, Judge.

This case comes to us on petition to transfer from the Appellate Court under § 4-215, Burns' 1946 Replacement. See New York, Chicago & St. Louis R. Co. v. Henderson, Ind.App.1956, 137 N.E.2d 744, for opinion of the Appellate Court.

It is an action to recover for personal injuries alleged to have been sustained by appellee in a collision between an automobile driven by appellee and a railroad train operated by appellant. Upon a trial by jury a verdict for appellee in the amount of $12,000 was returned. Rhetorical paragraph 15 of the complaint upon which the action was based was amended to read as follows:

'15. That unknown to this plaintiff there was then a train approaching said street crossing, but that defendant negligently failed to give any adequate warning or signal of said approaching train in that defendant failed to cause the gates guarding said street crossing to be closed, and failed to cause a bell to ring or a light to flash on signal devices maintained at said crossing by defendant and defendant carelessly and negligently ran said train from the east upon its tracks without blowing a whistle, sounding a horn, ringing a bell, or without giving any signal or notice whatever of its approach and negligently and carelessly ran said train upon and against plaintiff's said automobile.'

Errors assigned include the overruling of appellant's motion for a directed verdict at the close of the evidence and the overruling of a motion for a new trial. The specifications in the motion for a new trial attack the sufficiency of the evidence to support the verdict, the amount of damages, and certain instructions given by the court. A number of these alleged errors, we believe, may be disposed of in the consideration of the sufficiency of the evidence to support the verdict.

The evidence most favorable to the appellee tends to establish the following facts. The collision in question occurred at the intersection of Anthony Boulevard and appellant's railroad in the City of Ft. Wayne, Indiana about noon on November 10, 1953. Appellee just prior to the accident was driving south towards the crossing. Before reaching the crossing she traversed a steel bridge about 300 feet long which spans the Maumee River and continued further about 65 feet to the railroad crossing. The appellee was familiar with the crossing having passed over it two or three times each week during the last two year period. At times she was detained at the crossing by approaching trains and on these occasions she heard warning signals at the crossing and from the engine, and at the gates were always down and flasher signals working. At the time of the accident as she approached this crossing, the evidence favorable to the verdict is that no bell or whistle were sounded or warning signal of any kind given. As she looked towards the crossing, she observed that the gates were up and the flashers were inactive. She testified that while crossing and as she left the bridge she looked both ways down appellant's tracks and did not see any approaching train. At that time she slackened her speed and she was driving about 15 to 20 miles per hour. As she entered the crossing, the north gate, which was operated by an automatic device came down on her car and one of the appellant's trains approached from the east, struck the front end of her car and threw it around against the part supporting the crossing gate, and as a result she was injured. She was taken to the hospital for treatment of her injuries. The evidence shows three of her fingers were broken including a fracture to the ring finger of her right hand which at the time of the trial was still stiff and painful. She could not at the time of the trial touch her thumb with her index finger. Appellee was 66 years old at the time of the accident. For 29 years she had supported her family by working in homes by cleaning, washing, ironing and doing laundry work, and for the last ten years she had earned approximately $30.00 per week. Since the accident she has been unable to do any work except with her left hand.

It will be noted that the above summary includes no facts showing directly what caused the failure of the automatic signaling devices and the gate to operate properly. This raises the question as to whether or not the jury may reasonably draw inferences of negligence from the failure of these devices to operate as they should. In other words, is the doctrine of res ipsa loquitur applicable?

Negligence, as any other fact or condition, may be proved by circumstantial evidence, and it has been urged that there is nothing distinctive about the doctrine of res ipsa loquitur, since it involves merely the permissible drawing of an inference of negligence from certain surrounding facts. This no doubt is true except that the law permits the inference of negligence to be drawn under certain sets of facts known as res ipsa loquitur. The basis or reasoning for this principle, in its origin at least, seemed to have been that the defendant had exclusive control over the injuring agency and the plaintiff normally had no access to any information about its control and operation. 3 Cooley on Torts (4th Ed.) sec. 480, p. 369.

Frequently it is said the doctrine is applicable and negligence may be inferred 'where the thing (injuring instrumentality) is shown to be under the management of the defendant or his servants and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care.' Scott v. London & St. Katherine Docks Co. (1865), 3 H. & C. 596, p. 601; 159 Eng. Rep. 665, p. 667.

The leading case which established the rule of res ipsa loquitur was Byrne v. Boadle (1863), 2 H. & C. 722, 159 Eng. Reprint 299. In this case the evidence merely showed that the plaintiff was struck by a flour barrel which fell from a window above the street. Barrels do not ordinarily fall out of windows unless someone is negligent, decided the court, and the court held the plaintiff had made out a prima facie case. Since then the doctrine has been applied to train derailment cases, falling objects, surgical and dental operations and treatment resulting in unususl injuries, and failure of mechanical devices within the exclusive control of the defendant, among various other sets of facts. As complicated mechanical devices of our modern age achieve greater perfection and greater reliance upon them is justified, it follows that the doctrine has a broader application than originally.

Appellant attempts to make a distinction in cases where res ipsa loquitur applies by classifying those cases in which there is an allegation of 'defective equipment' causing the injury from those cases in which there is a mere failure of the defendant to operate such equipment. There is no direct allegation of defective equipment made in the complaint. Although a vast number of cases involve defective equipment and devices, we fail to follow the reasoning of the appellant for making such a limitation. In fact, the history and the operation of the doctrine does not bear out such a contention. No device whatever was involved in the case where a flour barrel rolled out of an upper window causing an injury; and it is well-settled that the doctrine applies to cases where sponges have been left in patients following operations and other like situtations.

The appellant contends that it assumed the burden of going forward with the proof by offering evidence which showed that it had maintained a proper inspection and tests of the mechanical safety gate and warning devices at the railroad crossing. The testimony on this point was that these tests were made a few hours before the collision and also immediately afterwards, and that the devices were in proper operation at the time of these inspections. Accordingly, appellant insists the rule as set forth in Worster v. Caylor, 1953, 231 Ind. 625, 110 N.E.2d 337, 340, is applicable and that upon such testimony and evidence offered by the appellant the doctrine of res ipsa loquitur vanishes from the case. We have examined this case and are unable to approve all that is said with reference to that principle of the law, and in particular, the following statement:

'It will be noted that the doctrine res ipsa loquitur does not prevail where the party against whom it might apply accepts the duty of going on with the proof and details the entire transaction. In such a situation the presumption, inference or doctrine ceases to exist and all questions concerning the injury must be determined from the evidence unaided by the inference or doctrine of res ipsa loquitur.' Worster v. Caylor, 1953, 231 Ind. 625, 632, 110 N.E.2d 337.

The rule stated in this case is a departure from the principle as previously followed in this state in the following cases among others: Cleveland, C., C. & St. L. R. Co. v. Hadley, 1907, 40 Ind.App. 731, 82 N.E. 1025, 16 L.R.A.,N.S., 527; Id., 170 Ind. 204, 82 N.E. 1025, 84 N.E. 13, 16 L.R.A.,N.S., 527; Louisville, New Albany & Chicago Ry. Co. v. Thompson, 1886, 107 Ind. 442, 8 N.E. 18, 9 N.E. 357, 57 Am.Rep. 120; Cleveland, Columbus, Cincinnati and Indianapolis R. Co. v. Newell, 1885, 104 Ind. 264, 3 N.E. 836, 54 Am.Rep. 312; Kickels v. Fein, 1937, 104 Ind.App. 606, 10 N.E.5d 297; Wass v. Suter, 1949, 119 Ind.App. 655, 84 N.E.2d 734.

The Worster v. Caylor case converts the doctrine from a rule of...