New York Cent. Ry. Co. v. Powell

• Decision Date: 29 March 1943
• Docket Number: 27822.
• Parties: NEW YORK CENT. RY. CO. v. POWELL.
• Court: Indiana Supreme Court

47 N.E.2d 615

221 Ind. 321

NEW YORK CENT. RY. CO. v. POWELL.

No. 27822.

Supreme Court of Indiana

March 29, 1943

[Copyrighted Material Omitted]

Parr Parr & Parr, of Lebanon, for appellant.

Scifres & Hollingsworth and Rogers & Smith, all of Lebanon for appellee.

FANSLER Judge.

The appellee's decedent was killed when the gasoline truck which he was driving was struck by appellant's train at a grade crossing in the town of Jamestown in Boone County. This is an action for damages alleged to have been caused by the negligent conduct of appellant in the operation of its train. There was judgment for the plaintiff.

Error is assigned upon the overruling of appellant's motion for judgment on the answers to interrogatories and on the overruling of its motion for a new trial.

The complaint, which is in one paragraph, alleges that the appellant's railroad intersects a public highway in the town over which a large volume of vehicular traffic passes; that the crossing is in the residential section; that the view of the crossing is obstructed because of an elevation in the ground east of the highway, and by buildings and trees and shrubs, and by a line of poles and wires maintained by the appellant to such a degree that the view of drivers of motor vehicles is obscured until vehicles are upon the crossing; that by reason of these obstructions the crossing is hazardous and perilous. It is alleged that the death of appellee's decedent was caused by the careless, reckless, and negligent acts of the appellant in the operation of its train 'in the following particulars, to-wit:

'First. That at said time and place, as the defendant, by its employees, drove and operated said freight train towards said crossing, said defendant carelessly and negligently failed to give any warning of the approach of said train towards said crossing as required by law in that the whistle on the engine pulling said train was not sounded distinctly three times when such engine was not less than eighty nor more than one hundred rods from such crossing; that the bell attached to such engine was not continuously rung from the time of sounding such whistle until such engine passed said crossing; that by the careless and negligent failure of the defendant to sound said whistle and ring said bell, as required by law, the said Allie M. Powell had no warning of the approach of said train and the negligent failure of the defendant to give such warning signals brought about the death of the said Allie M. Powell.

'Second. That on the 10th day of October, 1936, and at the time and place of the accident described in this complaint, the defendant, by its employees, drove and operated its freight train from an east to west direction over its said railroad through said town of Jamestown and upon and against said motor truck and said decedent at a high and dangerous rate of speed, to-wit, 70 miles per hour; that the defendant and the employees in charge of said train knew of the highly dangerous and hazardous condition of said crossing at said time; but notwithstanding said knowledge and the dangerous character of said crossing, said employees drove said freight train through the built-up section of the town of Jamestown and upon and over said High Street at said reckless and dangerous rate of speed and by reason thereof, plaintiff's decedent did not have time to observe the approach of said train, to avoid injury and pass over said crossing safely and was thereby killed.

'Third. That by reason of the highly dangerous and hazardous nature of the intersection of the railroad of said defendant and said High Street in the town of Jamestown, Indiana, the defendant, or its predecessor in title, had erected west of said High Street and south of the main track of said railroad prior to said 10th day of October, 1936, an automatic gong or bell for the purpose of warning the traveling public of an approaching train; that said automatic gong or bell was operated electrically and was situate approximately thirty (30) feet west of the center of the traveled portion of said High Street; that prior to the 10th day of October, 1936, plaintiff's decedent knew of said automatic gong or bell, had frequently crossed said crossing and relied upon the warning given by said gong or bell of the approach of trains of the defendant; that on the 10th day of October, 1936, and prior thereto, the defendant carelessly and negligently permitted said automatic gong or bell to become out of repair and on said date and immediately prior to the accident described in this complaint said automatic gong or bell was defective, out of repair, and did not give proper warning to travelers upon such public street of the approach of trains; that as plaintiff's decedent and said freight train approached said crossing said automatic gong or bell failed to give plaintiff's decedent any warning of the approach of said freight train; that the defendant carelessly and negligently failed to equip such public crossing with an automatic gong or bell so as to warn the traveling public, and particularly plaintiff's decedent, of the approach of defendant's freight train; that by reason of the careless and negligent act of the defendant in maintaining at said time and place a defective automatic bell or signal, plaintiff's decedent was not warned of the approach of said train and was thereby killed.'

A failure to give statutory signals, as alleged in the first assignment, is negligence per se.

In the second assignment of negligence the plaintiff relied upon excessive speed.

There are general allegations of obstructions to the view, but the third specification of negligence discloses that the plaintiff's decedent was familiar with the crossing, and that the defendant maintained an automatic electrically-operated gong or bell at the crossing for the purpose of warning of the approach of trains, and that the decedent was familiar with this warning device, had frequently crossed at the crossing, and that he relied upon the warning given by the automatic gong or bell. It is further alleged in this assignment that the defendant carelessly and negligently permitted the warning gong or bell to become out of repair so that it did not give a proper warning of the approach of the train in question, and failed to give the decedent any warning of the approach of the train. There is the further allegation in this assignment that the defendant failed to equip the crossing with an automatic gong or bell. This, however, is a contradictory allegation, and it appears without controversy that there was an automatic gong or bell installed at the crossing.

Speed of itself never constitutes negligence in the absence of a limiting statute or ordinance. We must reach the same conclusion as the court did in Union Traction Co. v. Howard, Adm'r, 1910, 173 Ind. 335, 340, 90 N.E. 764, 765, in which it is said: 'We think there is but one act of negligence alleged; that it requires the concurrence of a high and dangerous rate of speed, coupled or concurring with a failure to give warning, to constitute the negligence charged.' See, also, Brooks, Adm'r v. Muncie, etc., Traction Co., 1911, 176 Ind. 298, 95 N.E. 1006; Terre Haute, etc., Traction Co. v. Phillips, 1921, 191 Ind. 374, 132 N.E. 740.

The second and third assignments of negligence must be considered together and treated as alleging that an adequate warning device had been installed and maintained, of which the decedent had knowledge and upon which he relied for warning of the approach of a train, and that his death was caused by operating the train across the crossing at a high rate of speed at a time when the defendant had negligently permitted its otherwise adequate warning device to become out of order so that it did not warn the decedent of the approaching train. A theory that the operation of the train at the speed alleged, without warning other than that furnished by the statutory signals and the automatic crossing bell, or that the automatic crossing bell was ringing and the decedent was prevented from hearing by extrinsic agencies, constituted negligence is not even remotely suggested by the pleading.

'It is fundamental that in civil actions the plaintiff must recover upon the case he makes in his complaint, or not at all; that he cannot sue upon one state of facts and recover upon another. * * *

'It is furthermore fundamental that the instructions of the court to the jury must follow the evidence, and be limited to an exposition of the legal effect upon which the issues on trial of the relevant facts before the jury for determination.' Terre Haute Electric Co. v. Roberts, Guardian, 1910, 174 Ind. 351, 354, 355, 91 N.E. 941, 943.

Error is assigned upon the giving of the following instruction 'The court instructs you that if you find from a fair preponderance of the evidence that the circumstances and surroundings relative and pertaining to the collision of defendant's train with the truck driven by plaintiff's decedent at the time and place in question were such that ordinary care required the giving of other signals in addition to those required by the statute, the failure to exercise such care would be negligence.' In another instruction the jury was advised that if the automatic crossing bell had been permitted to get out of order, and that was the proximate cause of the decedent's death, the defendant would be liable. The instruction complained of must have been construed by the jury as authorizing them to determine whether or not the defendant was negligent in not providing warnings other than and in addition to the statutory signals and the crossing bell. This was entirely outside the issues. A verdict could not properly have been based upon the conclusion of the jury...