New York Cent. R. Co. v. Wyatt

• Decision Date: 26 July 1962
• Docket Number: No. 1,No. 19398,19398,1
• Citation: 184 N.E.2d 657,135 Ind.App. 205
• Parties: The NEW YORK CENTRAL RAILROAD COMPANY, Appellant, v. Helen Lucille WYATT, Administratrix of the Estate of Charles B. Wyatt, Deceased, Appellee
• Court: Indiana Appellate Court

Page 657

184 N.E.2d 657

135 Ind.App. 205

The NEW YORK CENTRAL RAILROAD COMPANY, Appellant, v. Helen Lucille WYATT, Administratrix of the Estate of Charles B. Wyatt, Deceased, Appellee.

No. 19398.

Appellate Court of Indiana, Division No. 1.

July 26, 1962.

Rehearing Denied Sept. 12, 1962.

Marvin A. Jersild, Gen. Atty. Chicago, Ill., John A. Stocker, Indianapolis, Owen W. Crumpacker, Theodore M. Gemberling, Hammond, Crumpacker, Gemberling & Enslen, Hammond, of counsel, for appellant.

Murray, Mannon, Fairchild & Stewart, James J. Stewart, Richard W. Guthrie, Indianapolis, for appellee.

RYAN, Judge.

Appellee (the plaintiff below), Helen Lucille Wyatt, Administratrix of the Estate of Charles B. Wyatt, deceased, filed her action against the appellant, The New York Central Railroad Company, to recover damages for the death of her husband, Charles B. Wyatt. Trial was had by a jury, which resulted in a verdict in the sum of Seventy-two Thousand Five Hundred ($72,500.00) Dollars in favor of the appellee, and consistent judgment was rendered thereon. Appellant filed its motion for a new trial which contained some thirty-nine (39) specifications of error. The motion for a new trial was overruled, and the appellant now assigns as error the overruling of its motion for a new trial.

The complaint of the appellee in substance alleged that the appellant was negligent in operating its train at an excessive speed; failure to give reasonable signals; failure to keep a reasonable lookout; failure to maintain proper control of the train; and permitting its engine to be operated by a 'young and inexperienced employee who was not regularly employed as an engineer and who was not qualified and competent to operate said locomotive'.

Appellant first argues that the jury's verdict is not sustained by sufficient evidence and that the trial court erred in refusing to direct a verdict. The material facts established by the evidence most favorable to the appellee are these:

Wyatt was employed by the Cox Motor Express Company as a truck driver and on the date of his death had made a delivery of glass bottles to the Schenley Distilleries plant in Lawrenceburg. Appellant owned and operated a spur track and right-of-way which ran from their main line in Lawrenceburg north into and through the properties of the Seagram's Distilleries, Schenley's, and the Walsh Distilleries, for the purpose of servicing those industries. The principal driveway for pedestrian and vehicular traffic to and from the main entrance of the Schenley plant crossed appellant's north-south right-of-way at right angles upon the Schenley grounds. The driveway turned north immediately east of the tracks. On the northwest corner of the intersection, there was a large building known as the dryer house which abutted the driveway on the north and was located just five (5) feet west of the nearest rail of the railroad tracks. At this particular point there were two sets of tracks paralleling one another with normal spacing between them.

At the time of the accident, which occurred in the afternoon, there were two freight cars standing on the tracks nearest the building, the closer of which according to at least one witness was approximately ten (10) or fifteen (15) feet north of the intersection. The train involved consisted of a switch engine pulling three freight cars southbound on the east tracks.

There was testimony from which the jury could have concluded that the train was operated at twenty (20) to twenty-five (25) miles per hour as it approached the intersection, that no bell was ringing, that the only signals given were two 'short toots' when the engine was approximately one hundred fifty (150) to two hundred (200) feet from the intersection; and the operator of the engine was not attentive to the operation of the engine, but was looking west out of the side window and waving at some men standing near the right-of-way just north of the intersection; that the brakes of the engine were not applied before the collision, despite the fact that the engineer could have seen the nose of the truck emerging from behind the building when the engine was approximately ninety (90) feet or more from the crossing; that the engine could have been stopped or at least slowed before impact. There was testimony that the crossing was regularly and frequently used by Schenley employees and those having business with Schenley, that traffic at the time of the accident was heavy, all of which was known to appellant and its crew; that appellant had a self-imposed yard speed limit of five (5) to seven (7) miles per hour in the area in question and that any speed in excess of five (5) to seven (7) miles per hour at the intersection was not safe. There was also evidence which established that Wyatt, because of the building and standing freight cars, could not have seen the train approaching until the front end of his tractor was on or within a few feet of the tracks in question; that Wyatt apparently stopped near the east edge of the building in question and appeared to be just starting up as he emerged from behind the building; that the engine struck the left front side of the trailer causing the tractor to be thrown up upon the engine and crushing Wyatt within the cab thereof; that the train traveled fifty (50) or sixty (60) feet after the impact with the tractor-trailer impaled upon the front thereof.

There was no conclusive evidence as to whether the distilleries or the right-of-way was first established, but it was abundantly clear from the evidence that the right-of-way was owned and exclusively used by appellant for servicing Schenley and the other distilleries; that the driveway in question was paved, and in constant, daily use as a main thoroughfare for traffic in and out of the Schenley plant, that appellant and its employees knew this, and that appellant's crew considered the intersection hazardous and recognized an obligation to signal thier approach thereto and limit their speed when crossing it in the interests of safety.

It is elementary, of course, that we may not weigh the evidence and that if there is some substantial evidence to support one or more of the allegations of negligence and all of the other material allegations of the complaint that the cause must be submitted to the jury by whose verdict we are bound. 2 I.L.E. Appeals, ch. 17, §§ 571-580, pp. 481-523. Under the circumstances, it is our opinion that the lower court properly overruled appellant's motion for a directed verdict.

The major issue in this appeal pertains to the legal position between the deceased and the railroad at the time and place of the accident and particularly the nature and scope of the duty, if any, owed by the railroad to the deceased.

Appellant takes the position that as to it, the deceased was a trespasser, or at best, no more than a bare licensee, to whom appellant owed no legal duty, save only to avoid intentional injury. This theory of the appellant is made the basis, in whole or in part, of appellant's objections to most of appellee's tendered instructions given by the lower court. In addition thereto, appellant's theory that the deceased was no more than a bare licensee was made the basis for many of the appellant's own instructions which were refused. Appellant argues this contention extensively in its brief.

The parties apparently agree that, generally speaking, a trespasser and bare licensee take the premises upon which they come without invitation of the owner, as they find them, and the owner thereof is not liable for injury caused by passive negligence. Cleveland, etc., R. Co. v. Means (1914), 59 Ind.App. 383, 104 N.E. 785, (Petition for Rehearing denied 108 N.E. 375); Samuel E. Pentecost Const. Co. v. O'Donnell (1942), 112 Ind.App. 47, 39 N.E.2d 812; Millspaugh, Admr. v. Northern Ind. Pub. S. Co. (1938), 104 Ind.App. 540, 12 N.E.2d 396.

Appellee contends, however, that the deceased was not a trespasser or bare licensee as to the appellant under the circumstances of this case, but occupied the status of an invitee or business visitor to whom the appellant had a duty to use due care. The trial court adopted appellee's theory of the case and instructed the jury accordingly and the propriety of the lower court's action in this connection is the principal point for decision. For the purpose of actions of this type, a trespasser or bare licensee may be defined as a person who enters or crosses the railroad's right-of-way without license, invitation or other right for some purpose of his own or for his own convenience, pleasure or benefit. An invitee, on the other hand, is a person who enters or crosses such right-of-way at the railroad's invitation, express or implied, and by reason thereof occupies a more favored position in respect to the care due him by the railroad than a trespasser or bare licensee. For a thorough and exhaustive review see 167 A.L.R. 1253.

Most of the cases involving private crossings are the so-called 'foot path' cases and involve injury to a member of the general public using a private foot path to cross railroad tracks at other than an established public crossing. Even in these cases the majority rule seems to be:

'* * * if the evidence shows that the public has for a long time, customarily and constantly, openly and notoriously, crossed railroad tracks at a place not a public highway, with the knowledge and acquiescence of the railroad company, a license or permission by the company to all persons to cross the tracks at that point may be presumed, and the railroad company is under a duty to exercise reasonably care in the movement of its trains at points where it is bound to anticipated their presence.' 167 A.L.R. 1253, 1256.

Reasoning by analogy to this rule, it seems clear to us that the owners of, and business visitors to, premises serviced by a side track crossing a private driveway, regularly used for ingress or egress to said...