New York Cent. R. Co. v. Casey

• Decision Date: 11 May 1938
• Docket Number: 26986.
• Citation: New York Cent. R. Co. v. Casey, 214 Ind. 464, 14 N.E.2d 714 (Ind. 1938)
• Parties: NEW YORK CENT. R. CO. v. CASEY.
• Court: Indiana Supreme Court

14 N.E.2d 714

214 Ind. 464

NEW YORK CENT. R. CO. v. CASEY.

No. 26986.

Supreme Court of Indiana

May 11, 1938

Appeal from Gibson Circuit Court; O. Dale Eby, Judge.

Embree & Baltzell, of Princeton, John K Chappell, of Petersburg, and Gerald E. Hall, of Princeton for appellant.

McDonald & McDonald, of Princeton, and Lockyear & Lockyear and R. Owen Williams, all of Evansville, for appellee.

FANSLER Judge.

The appellee brought this action to recover damages for injuries received when an automobile in which he was riding collided with a freight train moving across a highway. There was a trial, and judgment for the appellee for $10,000.

There is no substantial conflict in the evidence. In the dark, at about 3 o'clock in the morning, a Ford touring car occupied by ten men, including the appellee, who was not the driver, traveling westward upon U. S. Highway No. 50 collided with a freight train which was crossing over the highway, and in the collision the appellee received the injuries which are the basis of this action. The tracks of the railroad intersect the highway at approximately right angles. The highway is paved, and the approach to the railroad is slightly downgrade. 600 feet from the tracks the pavement is 15 feet higher than the rails. 316 feet before reaching the railroad there is a metal disc railroad crossing sign on the shoulder of the pavement on the right-hand side. On the left-hand side, on the edge of the pavement, is the usual cross-arm railroad sign. 360 feet from the railroad there is a large white ring painted on the pavement, with a white line running down the center of the pavement to the tracks. Near the white ring are white lines running across the highway with the letters 'RR,' 5 feet high, painted on the pavement. There are similar white lines and letters nearer the tracks. Photographs in evidence disclose that in the daytime both railroad crossing signs and the railroad tracks could be seen for about 1,800 feet before reaching the railroad. The train was about 3,000 feet long, and the automobile collided with one of the cars near the rear of the train.

The complaint alleges that the cars in the train were black and dirty; that they were not readily observable at night. Negligence is predicated upon failure to install reflectors upon the sides of the cars so that they might be readily seen by approaching motorists. The roadway across the railroad right of way was paved to the full width of the highway pavement and for 1 additional foot on each side. Negligence is charged for failure to provide a paved highway for the full width of the highway right of way across the railroad. Negligence is also predicated upon the failure to maintain lights, signals, and warnings at the crossing to indicate that a train was upon the track.

Clause 5 of section 55-601, Burns' Ann.St.1933, section 14099, Baldwin's Ind.St.1934, authorizes a railroad 'to construct its road upon or across any stream of water, watercourse, highway, railroad or canal, so as not to interfere with the free use of the same, which the route of its road shall intersect, in such manner as to afford security for life and property; but the corporation shall restore the stream or watercourse, road or highway thus intersected to its former state, or in a sufficient manner not to unnecessarily impair its usefulness or injure its franchises.' There is no contention that a smooth, safe driveway was not maintained across the railroad track to the full width of the traveled way and more. But it is contended that, under this statute, it is the duty of the railroad to provide a pavement and traveled way for the full width of the highway right of way so that travelers approaching and unable to stop may have space to turn around and avoid injury. There is no valid basis for this contention. It is sufficient if a railroad maintains the crossing in a safe condition to the full width which is provided by the public as a traveled way.

'There is no statute of this state requiring a railroad company, while its train, or any part thereof is occupying a highway crossing, either in passing thereover or when standing thereon, to station an employee at any such crossing to warn travelers on the highway that the road is obstructed by a locomotive, freight car, or other car, forming a part of such train, and no such duty is imposed by the common law, unless ordinary care would require that such action be taken. * * * The primary purpose of signals, gates, other devices, and of watchmen when required to be maintained at points where railroad tracks intersect highways, streets, etc., is to warn persons traveling on and over such ways that a train is approaching, and to protect them from damage or injury likely to ensue, if they attempt to use such crossing before the train passes thereover. Common knowledge and experience is sufficient to warn that the crossing cannot be used when already occupied, and the law does not require that information be given of an existing fact that ordinary observation will disclose.' Pennsylvania Railroad Co. v. Huss, 1932, 96 Ind.App. 71, 78, 180 N.E. 919, 921.

It is not contended that any of the statutory warning signs were missing. There is some evidence that the sign at the side of the road, 300 feet from the crossing, did not have a background of federal yellow, the color prescribed by the Public Service Commission under the statute. The evidence upon this question is conflicting. There is some testimony that the background was yellow, and other testimony that it was silver. The statute, sections 55-2003 to 55-2010 Burns' Ann.St.1933, sections 8631 to 8638, Baldwin's Ind.St.1934, provides that these signs shall be furnished by the state and paid...