New York Cent. R. Co. v. Glad

• Decision Date: 18 December 1959
• Docket Number: No. 18943,No. 2,18943,2
• Citation: 163 N.E.2d 131
• Parties: NEW YORK CENTRAL RAILROAD COMPANY, Appellant, v. John GLAD, Appellee. *
• Court: Indiana Appellate Court

Page 131

163 N.E.2d 131

NEW YORK CENTRAL RAILROAD COMPANY, Appellant, v. John GLAD, Appellee. ^*

No. 18943.

Appellate Court of Indiana, Division No. 2.

Dec. 18, 1959.

Marvin A. Jersild, Chicago, Ill., Owen W. Crumpacker, Theodore M. Gemberling, Lowell E. Enslen, Crumpacker, Gemberling & Enslen, Hammond, for appellant.

Spangler, Jennings & Spangler, by Ronald T. Spangler, Gary, Chester, Clifford, Hoeppner & Houran, Valparaiso, for appellee.

KELLEY, Judge.

Appellee instituted action agianst appellant by complaint for personal injuries and property (truck) damage allegedly sustained as a result of the alleged negligence of appellant in the operation of one of its locomotives across a north and south public highway, known as Liverpool Road, near the town of East Gary in Lake County, Indiana, and into appellee's truck then being operated by appellee in a southerly direction on said highway and across appellant's tracks. Appellant answered the complaint under the rules, and that appellee himself was guilty of negligence in particulars mentioned; appellant also filed cross-complaint alleging appellee's negligent operation of his truck whereby a semaphore signal was struck resulting in damage to appellant.

Issues were closed and cause was submitted to a jury. Verdict for appellee on his complaint, with damages assessed at $6,000. Consistent judgment on the verdict followed. From overruling of its motion for new trial appellant prosecutes this appeal.

Of the nine charges of negligence contained in his complaint, appellee, upon motion made at the conclusion of all the evidence, deleted seven of them. Appellant concedes that the evidence on the issue of whether the bell and whistle of appellant's locomotive were sounded was conflicting and that such issue, on this appeal, 'must be resolved in appellee's favor.' Appellant's main and vital contention is that the evidence shows that appellee was guilty of contributory negligence as a matter of law.

The evidence, favorable to appellee, tends to establish facts substantially as follows: The accident occurred about 1:30 o'clock in the afternoon of March 11, 1953. The sun was shining and the day was generally clear but 'There may have been a few clouds in the sky.' The day was mild with temperatures 'about 70 or 75.' Appellee is a man approximately 41 years of age at the time of the occurrence here involved, in good physical condition and, apparently, possessed of unimpaired eyesight and hearing.

Liverpool road is the dividing line highway between Gary and East Gary, in Lake County, Indiana; the highway runs in a north and south direction and crosses the tracks used by appellant at right angles and at grade. The said highway is a two lane blacktop road, 18 to 22 feet in width. Appellant's tracks, at the Liverpool road crossing, run approximately east and west but do angle, in general length, to the northeast and southwest 'a little bit'. To the north of appellant's tracks and at a distance of about 170 feet west of said Liverpool road, there is located a cement block plant operated by appellee. Access to said cement block plant from said Liverpool road is afforded by appellee's private sand road, which begins at a point on the west side of Liverpool road about 45 to 50 feet north of the north rail of appellant's main track and extends in a modified northwesterly and southeasterly direction, angling gently to the northwest as it progresses westward from its said intersection with Liverpool road, to an open yard adjacent to said cement plant. Said private sand road of appellee runs somewhat parallel to appellant's tracks but, as above stated, bears slightly wider to the northwest from said tracks as it progresses in a westerly direction.

Appellee got into his dump truck at a point about 15 feet south of the office of the cement block plant for the purpose of taking the truck to a garage for repairs because it wasn't 'hitting' right and lacked the power to 'make any time.' He drove the truck eastward down the private sand road toward its intersection with the Liverpool road, a distance of 170 to 190 feet. The truck was a two and a half ton, six wheel, 1950 or 1951 GMC truck, weighing 7 1/2 tons empty. Appellee said that when he got into the truck he looked towards the tracks and could see the 'tower' from there, but did not see a train. (The tower was located in a southwesterly direction from the point where he mounted the truck, and the tower was at the intersection of appellant's tracks with those of the Pennsylvania Railroad at a cross-over about 225 feet west of Liverpool road.) He sat on the left hand side of the truck and while driving southeasterly toward Liverpool road he looked through the right window toward the tracks on two separate occasions but 'I saw nothing during that period of time.'

When appellee arrived at entrance of the private road onto Liverpool road, he brought the truck to a stop. At that moment there was a car coming south on Liverpool road and was between 50 to 75 feet north of the halted truck. Another automobile was then approaching from the south going north and had reached appellant's tracks. Appellee waited for the southbound car to pass and then pulled out on Liverpool road a distance of 12 to 14 feet, with the front wheels on the highway, and again came to a stop. The northbound car passed and continued on its way. Appellee made no further stops before the accident. At the time of the second stop, appellee's truck was about 25 feet from the track on which he was struck, and the truck was 'at an angle pointing almost to the east.' Appellee said he could not then see to the west through the rear view mirror 'because of the kind of dump body on the truck' and that in looking through the right window 'I was looking more south than west.' Appellee completed his turn of the truck onto Liverpool road and to the south and 'at the time I made a complete turn I was on the track.'

There is evidence that at a point on the private sand road which is 100 feet northwest of its intersection with Liverpool road, there was an unobstructed view of a train to the west for a distance of approximately 595 feet; and at a point in said sand road 50 feet northwest of its said intersection with Liverpool road, an unobstructed view of a train to the west for a distance of 655 feet was afforded. At the point where appellee stopped his truck next before making the right turn onto Liverpool road, there was an unobstructed view down the tracks of approximately 760 feet to the west, and such unobstructed view was maintained, with no other train movements or diversionary objects to obstruct or divert the vision, over the remaining distance of 45 feet on Liverpool road from where the truck first stopped to the appellant's tracks.

Appellant's train of cars involved in the accident consisted of a Hudson type coal operated steam with boiler freight engine, seven (7) freight cars, all loaded but one, and the caboose. The freight cars are each forty (40) feet long and the caboose is thirty-three (33) feet long. The engine and coal tender were about 110 feet in overall length. As the train of cars approached the Liverpool road crossing over the tracks, the speed thereof was twenty (20) miles per hour. As he approached the tracks, appellee was traveling at a rate of 10 to 15 miles per hour.

Appellee testified that he had operated the cement plant for five (5) years, knew of the location of the tracks, had driven over them once or twice a week for six months and that 3, 4 or 5 of appellant's trains come on the track every day, and that when he drove out on the way to the garage on the day of the accident he knew that a train might be coming from the west.

We come now to the evidence concerning which the parties have devoted the main portion of their argument. Appellee, on direct examination, testified as stated above, that he stopped his truck at the west edge of Liverpool road where the private sand road enters upon it; then he pulled out and stopped the second time at a point about 25 feet (north) from the track upon which he was struck; that he was then 'facing east.' Continuing, the evidence ran as follows:

'Q. About 25 feet. When you stopped did you look to the east? A. I was facing east.

'Q. Did you look to the west? A. I looked in the mirror and couldn't see.

'Q. Did you look after you started to make your turn? Did you look to your left down the track? A. After I made the turn I was concentrating on getting across the track then.

'Q. After you made your second stop? A. Yes.

'Q. Did you look down the track east? A. Yes.

'Q. Did you look to the right or to the west? A. Yes, I did.

'Q. Did you see anything? A. No, sir.

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'Q. When you stopped the second time----. A. Yes, sir.

'Q. Was your car sort of diagonally toward the track or perpendicular? A. It was a little bit on an angle like.

'Q. What direction? A. It would be like east and west, I was kind of angling toward the southeast of the front of my truck. * * *'

The pertinent portions of the cross-examination of appellee were as follows:

'Q. You say that when you got in the truck--did you look over toward the railroad tracks? A. I did.

'Q. That is, when you looked, did you see any trains or cars or anything of that type? A. No, I didn't see no trains.

'Q. How far would you say you drove from where the truck was parked till you got to Liverpool? A. With that little curve around then, I'd say, anywhere from 175 to 190 feet.

'Q. And how many times did you look before you got to Liverpool? A. * * * I would say I looked at least twice.

* * *

* * *

'Q. Did you see anything during that period of time? A. Nothing, nothing.

'Q. When you got to Liverpool, as I understand it, you brought your truck to a stop? A. That's right.

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* * *

'Q. Did you stop on Liverpool or before you got to Liverpool? A. I stopped before I got on Liverpool, went to make a right hand turn, and stopped on Liverpool.

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