New York Cent. R. Co. v. Pinnell
| Decision Date | 14 April 1942 |
| Docket Number | 16682. |
| Citation | 40 N.E.2d 988,112 Ind.App. 116 |
| Parties | NEW YORK CENT. R. CO. v. PINNELL. |
| Court | Indiana Appellate Court |
Walter C. Williams, of Michigan City Marvin A. Jersild and Sidney C Murray, both of Chicago, Ill., and Oscar B. Smith, of Knox of counsel), for appellant.
James P. Gleason, of Michigan City, Robert H. Moore, of Gary, and Orville Nichols, of Knox, for appellee.
This was an action by the appellee, Gladys A. Pinnell administratrix of the estate of Arleigh Pinnell, deceased, to recover damages from the appellant, the New York Central Railroad Company, lessee of the Michigan Central Railroad Company, alleged to have resulted because of the wrongful death of appellee's decedent.
The issues were formed by a second amended complaint and an answer thereto in general denial. The case was tried to a jury which rendered a verdict in favor of the appellee for $6,000. The appellant appeals from the judgment rendered thereon and has assigned as error the overruling of its motion for a new trial.
The second amended complaint of appellee alleged in substance the following facts:
That Gladys Pinnell is the duly appointed, qualified, and acting administratrix of the estate of Arleigh Pinnell; that the defendant maintains and operates a steam railroad through the city of Michigan City, Indiana, which crosses a public street thereof known as Hitchcock Street; that Hitchcock Street runs in a northerly and southerly direction and is intersected by the right of way maintained by the defendant which extends in an easterly and westerly direction; that on either side of Hitchcock Street, immediately south of such intersection, are high banks of sand; that the traveled portion thereof, which is a gravel road, is narrow and rough, and that south of the defendant's tracks and west of Hitchcock Street, and extending to within approximately ten to twenty feet of defendant's tracks, is a large sand bank and part of a sand hill through which Hitchcock Street and the right of way of the railroad has been graded. That such sand bank conceals the view of persons approaching such intersection from the south upon Hitchcock Street, of trains approaching from the west along the tracks of the defendant. That at such intersection the defendant did not maintain any flashers or signal devices whatever, warning persons of the approach of trains along said highway; but that the defendant maintained certain crossing gates at the crossing that were so maintained and operated that they could be lowered as trains approached such crossing. That because of the topography in the vicinity of such intersection and the lights from the city, persons approaching the intersection in the nighttime were unable to distinguish lights reflected from trains from other lights in that particular locality; and that there were no warning devices whatever at such intersection to warn travelers of the approach of trains.
This second amended complaint further alleged that Hitchcock Street was a much traveled highway that extended from the northern portion of Michigan City to the southern portion thereof, and that at the time of the collision complained of there was in force and effect an ordinance of such city regulating the speed of trains and cars within such city. This ordinance is set forth in full. It provided that no locomotive should run on any railroad track within the limits of Michigan City at a greater speed than six miles an hour but provided that companies complying with Section 3 of the ordinance might run a locomotive at a rate of speed not exceeding twenty-five miles an hour. Section 3 provided that the company operating a steam railroad within the corporate limits of the city should maintain at such street crossings, as might be prescribed by the Mayor of such city, railroad gates to be operated from towers or by other suitable means; or, when satisfactory to the Mayor, it should maintain flagmen at such crossings. It further provided that the gates were to be operated by the railroad company from 6 o'clock a. m. to 9 o'clock p. m.
The complaint further alleged that on the 20th day of February, 1937, at approximately 1:03 a. m., the appellee's decedent was driving an automobile which approached the intersection of the railroad tracks and Hitchcock Street from the south and that as he was crossing such intersection the defendant (appellant) was guilty of negligence in six separate particulars, namely:
1. Negligently causing one of its trains to run at a high and dangerous rate of speed, to-wit: Sixty miles per hour, over such crossing.
2. Negligently causing one of its trains to run at a high and dangerous rate of speed, to-wit, sixty miles per hour, over such crossing, notwithstanding the fact that there were no flasher signals or no signals whatsoever to warn travelers of the approach of trains.
3. Negligently running its train across such intersection without sounding any bell, blowing any whistle, or giving any signal whatsoever of its approach at a high and dangerous rate of speed of sixty miles per hour.
4. Negligently running its train across the intersection, notwithstanding the fact of obstructions and that there were no flashers or warning devices, and a rough and defective crossing, at a high and dangerous rate of speed, to-wit, sixty miles per hour, and without the train crew keeping a watch for persons who might be upon or crossing said intersection.
5. Negligently failing to plank or gravel said crossing and to keep it within the level of the road, and carelessly and negligently running its train across said ungravelled, unplanked and unleveled crossing at the rate of sixty miles per hour.
6. Negligently running and operating its train over such crossing at a high and dangerous rate of speed without lowering said gates aforedescribed or giving any signal whatsoever of said train's approach.
It is further alleged that because of such acts of negligence the automobile that appellee's decedent was driving came in contact with the front part of a train of appellant, the exact part of which train is not known to appellee; and that by reason of such acts of negligence the train hit the automobile in which appellee's decedent was riding with great force, hurling it through the air and injuring him so that he died as a proximate result of such injuries, leaving surviving a widow and two minor daughters.
At the first trial of the cause the jury disagreed and aforesaid verdict was returned at the second trial. At the first trial a woman, who was an occupant of the automobile driven by appellee's decedent at the time of the collision, testified as a witness of the appellee. At the second trial she was absent, and the first claimed error relied upon by the appellant is the action of the trial court in admitting, over appellant's objections and exceptions, her former testimony. Appellant contends that the appellee failed to establish the existence of the facts that were necessary to bring such secondary evidence within the exceptions to the rule which barred its admission.
In civil cases the testimony of one witness cannot be given in evidence by another in a subsequent trial of the same case, until it is made to appear that the original witness is dead, or is insane, or otherwise so physically disabled that by the exercise of due diligence his deposition could not have been taken, or that the witness is a nonresident of the state, or that he is absent from his residence, and his whereabouts cannot, by due diligence, be ascertained, or that he has absented himself by the procurement of the opposite party. Wabash Railroad Co. v. Miller, 1901, 158 Ind. 174, 183, 61 N.E. 1005. For rule in criminal cases see Wilson v. State, 1911, 175 Ind. 458, 93 N.E. 609.
The question here involved was whether the particular witness was absent from her residence, and whether her whereabouts could, by due diligence, have been ascertained.
The appellee introduced evidence which showed that at the time of the first trial the particular witness resided with a relative in Michigan City; that after such trial she promised an attorney for appellee that she would keep him posted as to her whereabouts, and that in the event she changed her address she would notify him of such change. After the cause was set for trial the second time a private investigator, employed by attorneys for appellee, went to the residence occupied by such witness at the time of the first trial and failed to find her there. He and attorney for appellee made a search for her and found the family of relatives, with whom she had lived at the time of the first trial, then living at a new address. These people informed them that such witness had left there and gone to somewhere in Gary and from there somewhere into Illinois, and that they did not know her address or where it could be obtained. The attorney for appellee at that time had a subpoena with him and money to tender her witness fee. He made inquiries of the Chief of Police in Gary in an effort to locate such witness and the private investigator made a search in Gary. The private investigator was unable to get any trace of such witness.
Under such evidence, which was not contradicted, we believe the lower court was warranted in concluding that the witness was absent from her residence, and by the exercise of reasonable diligence her whereabouts could not be ascertained. The admission, at the second trial, of the evidence of such witness, under the circumstances and facts shown here, was within the sound legal discretion of the trial court; but in the event the trial court abused such discretion, the question of its abuse was one which might be reviewed and determined by this court on appeal. Wilson...
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