New York, Chicago and St. Louis Railroad Company v. Henderson, 18834

• Decision Date: 01 November 1956
• Docket Number: No. 18834,18834
• Citation: 137 N.E.2d 744
• Parties: NEW YORK, CHICAGO AND ST. LOUIS RAILROAD COMPANY, Appellant, v. Ollie J. HENDERSON, Appellee. *
• Court: Indiana Appellate Court

Page 744

137 N.E.2d 744

NEW YORK, CHICAGO AND ST. LOUIS RAILROAD COMPANY, Appellant, v. Ollie J. HENDERSON, Appellee. ^*

No. 18834.

Appellate Court of Indiana, In Banc.

Nov. 1, 1956.

Rehearing Denied Dec. 14, 1956.

Batton, Harker & Rauch, Marion, DeVoss, Smith & Macklin, Decatur, Harker & Irwin, Frankfort, Clay Marsteller, Cleveland, Ohio, of counsel, for appellant.

Miller, Nieter & Smith, Maxwell Smith, Dan C. Flanagan, Ft. Wayne, for appellee.

CRUMPACKER, Presiding Judge.

The appellant's right of way and railroad tracks run east and west through the city of Fort Wayne, Indiana, and, at the point of the accident here in controversy, are located a short distance south of and parallel to the Maumee River. Anthony Boulevard runs north and south through said city and is carried over said river on a steel bridge 300 feet long and intersects the appellant's right of way about 60 feet south of the south end of said bridge. By force of an ordinance of the city of Fort Wayne the appellant, for many years prior to the accident here involved, has maintained gates and flasher signals at this intersection which operate automatically when an approaching train passes over and activates an electric switch located a proper distance both east and west of said intersection.

The appellee, driving an automobile south on Anthony Boulevard, about noon of November 10, 1953, was struck and injured at this intersection by one of the appellant's westbound trains. She brought this suit to recover resulting damages charging the appellant with negligence in the following language:

'That unknown to this plaintiff there was then a train approaching said street crossing, but that defendant negligently failed to give any adequate warning or signal of said approaching train in that defendant failed to cause the gates guarding said street crossing to be closed, and failed to cause a bell to ring or a light to flash on signal devices maintained at said crossing by defendant and defendant carelessly and negligently ran said train from the east upon its tracks without blowing a whistle, sounding a horn, ringing a bell, or without giving any signal or notice whatever of its approach and negligently and carelessly ran said train upon and against plaintiff's said automobile.'

A jury's verdict assessed the appellee's damages in the sum of $12,000 upon which an appropriate judgment was duly entered.

The evidence most favorable to the appellee tends to establish the following facts: The appellee was familiar with the crossing involved having passed over it two or three times a week for a period of two years prior to the accident. On occasions she was detained at the crossing by approaching trains in which event she always heard warning signals from said trains such as an engine whistle or a ringing bell and the gates were always down and the flashers working. On the day of the accident the appellee approached the crossing from the north over the Maumee River bridge the superstructure of which interfered to some extent with her view to the east. As she left the bridge and was about 60 feet north of the crossing she looked down the appellant's tracks both ways and saw no approaching train. She heard no bell, whistle or warning signal of any kind and, as she looked toward the crossing itself, she observed that the gates were up and the flashers inactive. She thereupon slackened the speed of her car to about 15 miles per hour and entered the crossing. As she did so the north gate came down on her car and one of the appellant's trains, approaching from the east, struck the front end of her car and threw it around and against the post supporting the crossing gate with such force that said automobile was severely damaged and injuries were inflicted upon the appellee's person. She was taken to a hospital immediately where she was examined by Dr. Richard C. Stauffer who found a spiral fracture of the proximal phalanx of the ring finger of the right hand. In the healing process said finger, together with the middle and little fingers of said hand, have become permanently stiffened to the extent that she cannot close the same into a fist and thereby its function has become limited. Her hand is still painful and numb and her right shoulder bothers her to some extent. She testified that after the accident her eyesight began to fail although Dr. Stauffer's testimony made no mention of such fact and is silent as to any injury to which such occurrence can be attributed. She is 66 years old with a life...