New York Cent. R. Co. v. Cavinder, 20015

• Decision Date: 15 November 1965
• Docket Number: No. 20015,20015
• Citation: 141 Ind.App. 42,211 N.E.2d 502
• Parties: NEW YORK CENTRAL RAILROAD COMPANY, Appellant, v. Ronald CAVINDER, by Hobart Cavinder, his next of friend, Appellee.
• Court: Indiana Appellate Court

Page 502

211 N.E.2d 502

141 Ind.App. 42

NEW YORK CENTRAL RAILROAD COMPANY, Appellant, v. Ronald CAVINDER, by Hobart Cavinder, his next of friend Appellee.

No. 20015.

Appellate Court of Indiana, In Banc.

Nov. 15, 1965.

[141 INDAPP 44]

Richard O. Olson, Chicago, Ill., Owen W. Crumpacker, George V. Burbach, Richard P. Komyatte, Crumpacker, Burbach & Abrahamson, Hammond, for appellant.

Paul Reed, Reed & St. Martin, Knox, for appellee.

FAULCONER, Judge.

Ronald Cavinder, 17 years of age, sustained personal injuries when the Volkswagen Sedan in which he was riding as a guest passenger and which was being driven by his mother, collided with a New York Central freight train at a grade crossing in Tefft, Indiana, at approximately 1:30 P.M. on December 31. Acting by and through his father as next friend, he filed suit in the Jasper Circuit Court. The case was venued to the Porter Superior Court on application of plaintiff-appellee. The jury returned a verdict for appellee in the amount of $10,000, and costs. Judgment was duly entered on the verdict. Appellant's motion for new trial, duly filed, was overruled. Appellant's sole assignment of error is the overruling of its motion for new trial.

Appellant's motion for new trial contains eleven specifications of error. Appellant, in its brief, argues only specifications 1, 2, 4, 5, 9 and 10. Therefore, all other grounds for new trial are waived. Farm and Home Insurance Company v. Konradi (1964), Ind.App., 199 N.E.2d 726, 728.

Appellant asserts, in the argument section of its brief, that the following specifications of error raise identical questions of law and are, therefore, grouped and argued together.

[141 INDAPP 45] Specification 1--The verdict of the jury is not sustained by sufficient evidence.

Specification 2--The verdict of the jury is contrary to law.

Specification 5--Error of law occurring at the trial in that the court erroneously overruled the motion of the defendant, made at the close of all the evidence, to direct the jury to return a verdict for the defendant.

Although appellant subdivides its argument of these specifications under headings 'A' through 'E', the substance of its argument is that the failure of appellant to sound its whistle and bell, if there were such a failure which appellant denies, such failure, if negligence, was not the proximate cause of the collision; that the undisputed facts show that the automobile in which appellee was riding could have stopped in ample time after receiving knowledge of the approach of appellant's train had it not been for ice on the highway causing the automobile to skid; that the ice on the highway was the proximate cause of the collision and resultant injuries and, therefore, it was a question of law; and that the trial judge should have sustained appellant's motion for a directed verdict.

Two of the essential elements of plaintiff-appellee's case were that the defendant-appellant was negligent and that said negligence was the proximate cause of plaintiff-appellee's injuries.

The record in this case discloses the following facts most favorable to appellee:

Appellee was a guest passenger in an automobile being driven by his mother in a northerly direction along a county highway which highway runs in a general north and south direction through the village of Tefft, Indiana, and intersects at right angles with the tracks of appellant's railroad. A building, housing a grain elevator, was located to the south of appellant's tracks and the west end of said building was approximately 250 feet east of the highway. [141 INDAPP 46] The building was approximately 60 feet tall, 100 feet long, and 80 feet wide. Immediately north of the building was a side track and north of it was appellant's main track. When the driver of the automobile, in which appellee was riding, saw smoke coming 'over the tops of boxcars' on the side track she had already shifted her automobile into the lower gears and was traveling 10-15 miles per hour, and she stepped on the brakes and the car skidded on the ice and didn't stop prior to the impact with appellant's train which was coming from the east. Tefft Road was a blacktop, two-lane road, and on the day of this occurrence it was covered with ice and very slippery. The weather was cold, and it was raining and freezing and there was some sleet. The crossing had no signals, but did have the standard disk sign south of the crossing and the crossbuck. Appellee and his mother were familiar with the crossing. Neither appellee nor his mother heard a train whistle or bell.

Appellant asserts in its brief that testimony of the driver of the automobile shows that she could have stopped the car after she received knowledge of the approach of the train except for the ice on the road. A careful reading of all of the cross-examination by appellant's counsel of the driver of the automobile concerning this issue fails to convince us that it was as conclusive as appellant contends. Such cross-examination, in pertinent part, is as follows:

'Q If it hadn't been for the icy pavement you would have had no trouble stopping, isn't that true? In other words, if it hadn't been for the icy pavement you would have had no trouble stopping without running into the side of the train, isn't that true?

'MR. REED: We object because it assumes she ran into the side of the train.

'MR. CRUMPACKER: All right, without the collision.

'THE WITNESS: Would you repeat, please?

'Q I mean, if it hadn't been for the ice on the asphalt you wouldn't have had any trouble avoiding a collision, would you?

Don't look at Mr. Reed.

'A I'm not looking at him.

[141 INDAPP 47] 'Q What?

'MR. REED: I'm not very nice to look at but she can look if she wants to.

'MR. CRUMPACKER: Well, I would prefer if she would look after she answers the questions, not before.

'THE WITNESS: A I guess not.

'Q Your answer is you think not?

'A I said there wouldn't have been one, maybe.

'Q. You mean there wouldn't have been a collision? Is that what you mean?

'A I guess so.'

Under our law the credibility of this witness and the inferences to be drawn from her testimony, as well as the weight thereof, were to be determined by the jury. Midwest Oil Company, Inc. v. Storey (1962), 134 Ind.App. 137, 149, 178 N.E.2d 468, 474, (Transfer denied).

Appellant further relies upon the testimony of the Police Officer to the effect that a Volkswagen automobile traveling at 10-15 miles per hour could have stopped within 40 feet on asphalt icy pavement on normal application of brakes. This testimony was based upon a hypothetical question which included definite facts as to speed and distance and conditions. However, a reading of the record on this issue discloses that there is conflict as to the exact speed the automobile was traveling, the distance from the south of the tracks when the brakes were first applied, thus leaving to the jury to determine the weight and credibility to be given to the testimony of this witness on this particular point.

Appellant further contends that the trial court should have held, as a matter of law, that the ice on the highway was the sole cause of the collision and resulting injuries.

As authority for its proposition that ice is an intervening cause as a matter of law, appellant cites one decision from each, Indiana, Illinois and New Hampshire, and four decisions [141 INDAPP 48] of the United States Circuit Court of Appeals. We feel these cases are distinguishable from the case at bar.

Although the Indiana case, Holtz v. Elgin, etc. Ry. Co. (1951), 121 Ind.App. 175, 98 N.E.2d 245, held, as a matter of law, that ice was an intervening cause, the opinion specifically states that it was applying the law of Illinois. The court based its opinion on an Illinois case, berg v. New York Cent. R. Co. (1945), 391 Ill. 52, 62 N.E.2d 676, also cited by appellant. The rule laid down in the Berg case is questionable in light of later Illinois cases.

The other cases cited involve the States of Iowa, New Hampshire, Nebraska and Illinois, and one case involves an occurrence in Indiana. The United States Circuit Court of Appeals reversed the Federal District Court for the Northern District of Indiana in Hart v. Wabash R. Co. (7th Cir. 1949), 177 F.2d 492. The Circuit Court of Appeals held that the only cause of the collision was the slippery condition of the highway. There is, however, one important fact in the Hart case that is absent in the present case, and that is the unobstructed view of the tracks in the direction from which the train was approaching. In the Hart case no Indiana law or decisions were referred to as authority on the subject of proximate cause or intervening agency therein.

In order not to unduly lengthen this opinion by discussing each case cited by appellant on the question of proximate cause and intervening cause, which cases we have duly considered, we feel it sufficient to say that the law appellant quotes therefrom is generally the law in Indiana. However, we cannot agree with appellant's application of such law to the factual situation in this case and the conclusions it has reached. Indeed, in several of the cases the law quoted therefrom by appellant was held not to apply to the facts of the cases cited.

We are confident, after a thorough review of the issues herein involved, that this issue can be determined using the [141 INDAPP 49] law as set forth in Indiana decisions and their application to the facts in the case presently before us.

A proximate cause of an injury is the cause which sets in motion the chain of circumstances leading up to the injury and has been defined as that cause which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces the result complained of and without which the result would not have occurred. Moran v. Poledor (1926), 84 Ind.App. 266, 273, 151 N.E. 140; 21 Ind.Law Encyc., Negligence, Sec. 61, p. 319.

'Proximate cause' is that act that...