New York Cent. R. Co. v. Glad

• Decision Date: 29 January 1962
• Docket Number: No. 30202,30202
• Citation: 242 Ind. 450,179 N.E.2d 571
• Parties: The NEW YORK CENTRAL RAILROAD COMPANY, Appellant, v. John GLAD, Appellee.
• Court: Indiana Supreme Court

Page 571

179 N.E.2d 571

242 Ind. 450

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

No. 30202.

Supreme Court of Indiana.

Jan. 29, 1962.

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.

BOBBITT, Judge.

This case comes to us on petition to transfer from the Appellate Court under Acts 1933, ch. 151, § 1, p. 800, being § 4-215, Burns' 1946 Replacement. ¹ See: New York Central Railroad Company v. Glad (Ind.App.1959), 163 N.E.2d 131 for opinion of the Appellate Court.

This is an action for personal injuries and property damage allegedly sustained at a railroad crossing where Liverpool Road crosses appellant's tracks near the Town of East Gary, in Lake County, Indiana.

Appellant, in its answer to the complaint, alleged the plaintiff-appellee himself was guilty of negligence which was the proximate cause of his alleged injuries and property damage.

Trial was by jury which returned a verdict for plaintiff-appellee in the sum of $6,000, judgment accordingly. From the overruling of appellant's motion for a new trial this appeal is prosecuted.

Appellant concedes that the evidence on the issue of whether the bell and whistle on its locomotive were sounded was conflicting, and that such issue, on appeal, must be resolved in appellee's favor.

The determinative question here presented is: Was appellee guilty of contributory negligence as a matter of law?

The question of contributory negligence is one of fact for the jury when the evidence with respect thereto is in dispute or is conflicting, or is such that different minds may reasonably draw different conclusions or inferences therefrom. However, where but one reasonable conclusion or inference can be drawn from the evidence, the question of contributory negligence is one of law for the court. 21 I.L.E., Negligence, § 205, p. 431, and cases there cited.

The evidence pertinent to the issue of contributory negligence may be summarized as follows:

Appellee was approximately 41 years of age at the time of the accident. He was in good physical condition and apparently possessed of unimpaired eyesight and hearing.

The accident occurred about 1:15 o'clock in the afternoon of March 11, 1953. The day was clear with only a few clouds in the sky, and the sun was shining at the time of the accident.

Liverpool Road runs in a north and south direction and crosses the tracks of appellant at right angles and at grade. Appellant's tracks run approximately east and west at the point where they cross Liverpool Road, with a slight angle to the north and southwest.

Appellee operates a cement block plant about 170 feet west of Liverpool Road. Access to the plant is afforded by a private sand road running about 45 to 50 feet north of the north rail of appellant's main track and parallel with the track except where it angles slightly to the northwest as it approaches the intersection with Liverpool Road.

On the day of the accident appellee was driving his two and a half ton, six-wheel truck eastward down the private sand road to its intersection with Liverpool Road. When appellee boarded the truck he looked towards the tracks and could see the 'tower', which was at the intersection of appellant's tracks with those of the Pennsylvania Railroad about 225 feet west of Liverpool Road.

Appellee was sitting on the left side of the cab of the truck and as he drove it towards Liverpool Road he looked through the right window of the cab of the truck towards the tracks on two different occasions, but testified that he 'saw nothing during that period of time.'

He stopped the truck when it reached Liverpool Road where an automobile was coming from the north and another automobile was approaching from the south. Appellee waited for the southbound automobile to pass and then pulled the front wheels of the truck out onto Liverpool Road where he again came to a stop. He made no other stop before the accident.

At the time appellee pulled the front wheels of his truck onto Liverpool Road and stopped, he was about 25 feet from the track where he was struck by the train. Appellee testified that at this point he could not see to the west through the rear view mirror of his truck 'because of the kind of dump body on the truck' and that in looking through the right window he 'was looking more south than west.'

In describing 'what happened' when he came to the intersection of Liverpool Road and his driveway, appellant testified, on direct examination, as follows:

'Well, when I got to Liverpool Road I had to stop there for a little bit, and by being in the cab--I have an 8 foot bed on that truck--I have those mirrors on my truck about that wide. (Indicating) You can see behind the truck but you can't see off to the right. I looked out the window but I couldn't, I was so far, right on the road at an angle, I couldn't even see the tower. [Down the tracks approximately 200 feet west.] I know that because I tried it afterward to see just how I could see.'

At the point where appellee stopped his truck to make a right turn onto Liverpool Road there was an unobstructed view down appellant's tracks of approximately 760 feet to the west, and this view was not obstructed by other train movements or any other diversionary objects over the entire distrance of 45 feet on Liverpool Road from where the truck first stopped to the appellant's tracks.

Appellee further testified that when he drove off the sand road onto Liverpool Road he was about 25 feet from the track and facing east, and that he looked to the east and to the west but saw no trains, and that after he attempted to look but could not see, he 'started up again.' That he couldn't see west but could see southwest 'to the right' because the dump body of the truck obstructed his view to the west. Appellee further testified that after he had gone twelve or fourteen feet on Liverpool Road he looked to the right but saw no trains coming; that he 'couldn't look down the tracks' but could only 'look across them' because the dump body of the truck obstructed the view; and that he really didn't know whether he looked for trains at any time after he started the truck following his stop when he entered Liverpool Road.

The evidence is undisputed that appellee could not see down the railroad tracks to the west, the direction from which the train was coming, but could only look southwest because of the kind of dump body he had on the truck.

There is undisputed evidence that appellee's truck was clearly visible to the fireman when the engine was just west of the crossover of the Pennsylvania tracks, some 225 feet west of the crossing; that appellee's truck was at that time halfway between the 'block plant' and Liverpool Road; and that when appellee's truck crossed over a switch track just north of appellant's main track, the 'front end of the engine' was within a few feet of the road and was travelling approximately twenty miles per hour.

The train involved in the accident consisted of an engine and coal tender, seven freight cars and a caboose. As it approached the Liverpool Road crossing its speed was twenty miles per hour, and appellee was travelling at a rate of ten to fifteen miles per hour.

Appellee testified that he had operated the cement plant for five years, that he knew the location of the tracks, had driven over them once or twice a week for six months, that three to five of appellant's trains cross over the track every day, and that when he drove out onto the sand road the day of the accident he knew that a train might be coming from the west.

Appellant asserts that plaintiff-appellee, Glad, is guilty of contributory negligence as a matter of law because he failed to stop within not more than fifty feet and not less than ten feet from the nearent track as he approached the railroad crossing, when a train was visibly approaching in hazardous proximity to the crossing, in violation of Acts 1939, ch. 48, § 100, p. 289, being § 47-2114, Burns' 1952 Replacement.

There is no conflict in the evidence here as to whether or not the statute was violated.

Plaintiff-appellee, Glad, admits that he failed to stop after he turned south on Liverpool Road; that while he was travelling east on the sand road parallel to the tracks he could see 'west and down the tracts 25 to 50 feet west of Liverpool' but after he turned south on Liverpool Road he did not look to the west because he could not see west 'down the tracks' but could only see across them because 'the dump body of the truck obstructed the view.'

It is conclusively shown by undisputed evidence that plaintiff-appellee violated the duty prescribed by § 47-2114, supra, by proceeding onto the crossing when appellant's train was 'plainly visible' and in 'hazardous proximity to the crossing' and before he could 'do so safely.'

Generally, the violation of a duty prescribed by statute or ordinance is negligence per se or as a matter of law. Northern Indiana Transit, Inc. v. Burk et al. (1950), 228 Ind. 162, 172, 89 N.E.2d 905, 17 A.L.R.2d 572; Hayes Freight Lines, Inc. et al. v. Wilson (1948), 226 Ind. 1, 5, 77 N.E.2d 580; Indiana, Bloomington and Western Railway Company et al. v. Barnhart (1888), 115 Ind. 399, 16 N.E. 121; Prest-o-Lite Company v. Skeel (1914), 182 Ind. 593, 106 N.E. 365, Ann.Cas.1917A, 474; Rimco Realty & Investment Corporation v. LaVigne et al. (1943), 114 Ind.App. 211, 50 N.E.2d 953; Larkins v. Kohlmeyer (1951), 229 Ind. 391, 398, 98 N.E.2d 896; Rentschler v. Hall (1947), 117 Ind.App.255, 261, 264, 69 N.E.2d 619; Grand Trunk Western R. Co. v. Briggs (1942), 112 Ind. App. 360, 369, 42 N.E.2d 367.

Exceptions to this general rule have been recognized in Indiana where compliance with the provisions of the statute or ordinance was...