New York Cent. R. Co. v. Thompson
| Decision Date | 27 June 1939 |
| Docket Number | 27247. |
| Citation | 21 N.E.2d 625,215 Ind. 652 |
| Parties | NEW YORK CENT. R. CO. v. THOMPSON. |
| Court | Indiana Supreme Court |
T A. McCormack, of Cincinnati, Ohio, Cook & Walker, of Greenfield, and Forrest Chenoweth, of Indianapolis, for appellant.
John O. Spahr, of Indianapolis, and Omer S. Jackson, Atty. Gen for appellee.
This was an action by the appellee against appellant to recover damages for personal injuries alleged to have been sustained by appellee by reason of negligence of appellant under the doctrine of the last clear chance.
The complaint was in one paragraph to which appellant answered by general denial.
The jury returned a general verdict in favor of appellee and judgment was entered accordingly.
Appellant filed a motion for judgment on the answers to interrogatories notwithstanding the general verdict. Also a motion for a new trial. The overruling of these motions are the errors assigned on appeal.
We will discuss appellant's second assigned error first. The first reason assigned in its motion for a new trial is the insufficiency of the evidence to support the verdict, and the second is that the verdict is contrary to law. From appellant's brief it is apparent that it relies mainly upon these two questions for a reversal of this case.
In considering the question as to the sufficiency of the evidence to support a verdict on appeal, this court will consider only the evidence most favorable to the appellee. Hudelson et al. v. Hudelson et al., 1905 164 Ind. 694, 74 N.E. 504; Ray v. Baker, 1905, 165 Ind. 74, 74 N.E. 619; Hoskinson v. Cavender, 1895 143 Ind. 1, 2, 42 N.E. 358.
The record shows, in substance, the following facts: That on December 15, 1933, appellant operated a railroad through the town of Winchester, Indiana over a double track, running east and west through said City of Winchester. The north track was known as the east bound track. On the night of December 15, 1933, appellee, a woman, twenty eight years old, was going from her sister's home, located on Oak Street, a little over a block north or appellant's tracks, and near the east edge of the City of Winchester, to the office of the General Glass Factory. The General Glass Factory is located south and just across appellant's tracks from where appellee was living on Oak Street. Appellee left her sister's home about 11:30 P. M. on the 15th of December 1933 and proceeded south on Oak Street to appellant's tracks. She stepped over the north rail of the west bound track and her foot slipped and became fastened under the rail in such a manner that she could not extricate herself from her position. As appellee stepped across the first railing she saw one of appellant's trains approaching her from the east. The head light was burning brightly and threw its rays of light some fifteen to two thousand feet down the track in front of the engine. It was shown that the head light was such that persons riding in the engine cab were able to see a rabbit cross the track fifteen hundred feet in front of the engine. The train appellee saw approaching was a freight train composed of some seventy five cars and was about three fourths of a mile east of her. When appellee's foot became fastened under the rail and she discovered that she was unable to get it loose, she raised herself upon one knee, took her handkerchief and began waving it to signal the engineer to stop. Soon after appellant's train crossed the improved highway some three thousand four hundred feet east of where appellee was, the engineer began to sound short blasts of the whistle and continued to so sound the whistle until after it passed the point where appellee was injured. It appears from the evidence that as the train approached, appellee attempted to unfasten her shoe and made constant effort to extricate herself from her perilous position and at times would raise herself on one knee to signal the train to stop and all this time she was on appellant's tracks between the rails and within the rays of the head light on the engine. Just before the engine reached appellee she flung herself over the south rail and freed herself, except her left arm, which was caught under the wheels of the engine and crushed and mangled to such an extent that it became necessary that it be amputated at the elbow.
The engineer in charge of appellant's train at the time of the injury, the fireman, the conductor, and the head brakeman, all were riding in the engine cab at the time of the injury, and all were looking down the track from the time the engine whistled for the crossing of the improved highway until they passed the point where the appellee contends she was injured; and all testified that they did not see appellee on the track, and in fact testified they saw no one on or near the track between the improved highway crossing above referred to and the depot where the train stopped.
There is a sharp conflict in the evidence as to the sounding of short blasts of the whistle between the improved highway crossing east of the Glass Factory and the point where appellee claims she was injured. Appellant's witnesses said no whistle was sounded except the regulation crossing whistle, which consisted of two long and two short blasts. While appellee, her brother, and her sister all testified to a series of short shrill blasts of the whistle. Appellee testified that after the engine had passed the improved highway crossing and about the time it reached the unimproved street crossing which was about eighteen hundred feet east of appellee, the whistle was sounded and continued to sound short, shrill blasts from that point until the train passed her. Appellee's brother and sister testified to hearing these short blasts, but did not knew the occasion for them being sounded.
Interrogatories were submitted to the jury and in answer to interrogatories No. 24 and 25, the jury specifically found that the engineer in charge of appellant's train saw appellee on the west bound track and knew appellee's foot was fastened under the rail.
Taking the evidence most favorable to appellee, it is the position of appellant that the evidence is insufficient to sustain the verdict of the jury.
It is evident that the jury believed the evidence offered by appellee to the effect that her foot was fastened under the rail of appellant's track in such a manner that she was unable to extricate herself therefrom and they also believed her testimony as to the effort she made to free herself from her perilous position and to attract the attention of those in charge of the train. Also that appellant's engineer began to sound short blasts of the whistle after the engine had passed the improved highway crossing and when it was from fifteen to eighteen hundred feet east of appellee. Appellee contends that this evidence, although circumstantial in character, was sufficient to establish the fact that the engineer saw appellee at the time and place, and under the circumstances related by appellee. We think appellee is correct in this contention.
If we assume, as we must on appeal, that the jury believed appellee's witnesses as to the sounding of the short blasts of the whistle, then, in the absence of any explanation by appellant for the whistle, or any reason whatever given for such conduct, isn't it the most reasonable, logical, and natural thing for the jury to conclude that her presence there was the occasion for the blowing of the whistle? Under the evidence in this case, that was the only occasion for the sounding of the short blasts of the whistle, and such a conclusion is a reasonable and sensible explanation of the whole story. We think, beyond any serious question, the evidence, although circumstantial, was quite sufficient to establish the fact of knowledge on the part of the engineer that appellee was on appellant's tracks. When it is determined that the evidence was sufficient to establish knowledge on the part of appellant's engineer of appellee's position upon the track of appellant, it becomes easy to approximate the distance the train was east of appellee at the time of the acquisition of such knowledge. Appellee testified that the engine was from fifteen hundred to eighteen hundred feet east of her when the short blasts of the whistle was first sounded. So, the engineer must have discovered appellee's presence upon the track before he began to sound the whistle. If he did see her, the evidence above set out, also justified the jury in finding that the engineer also knew that she was in a place of peril from which she was unable to extricate herself. All the witnesses testified as to the brightness of the head light on the engine and the clearness with which objects were discernible that came within its rays. The jury was also justified in concluding that the engineer saw her floundering on the track, raising herself upon one knee, and waving her handkerchief and must have known that she was in danger. It then became the duty of the engineer in charge of appellant's train to use reasonable care and make use of the means available to stop the train or to slow its speed in order to avoid injury to appellee. The evidence also shows that if appellant had discharged this duty, appellee would not have been injured. The train was equipped with emergency brakes in addition to the regular brakes ordinarily used. The emergency brakes were not used. If they had been the speed of the train would have been considerably checked and the evidence was such that justified the jury in finding that it could have been completely stopped before it reached appellee.
Both appellant and appellee rely upon the case of Terre Haute, I & E. Traction Co. v. Stevenson, 1919, 189 Ind. 100, 123 N.E. 785, 788, 126 N.E. 3. The doctrine of the last...
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