Ohio & Mississippi Railway v. Hill
| Decision Date | 10 November 1888 |
| Docket Number | 14,265 |
| Citation | 18 N.E. 461,117 Ind. 56 |
| Parties | The Ohio and Mississippi Railway Company v. Hill, Administratrix |
| Court | Indiana Supreme Court |
Petition for a Rehearing Overruled Feb. 2, 1889.
From the Clark Circuit Court.
Judgment reversed with costs.
J. K Marsh and W. H. Watson, for appellant.
F. B Burke, for appellee.
David Hill received injuries, in a collision with one of appellant's engines, from which he died. This is an action by the administratrix to recover damages from the railway company.
The grounds upon which appellant's counsel contend that the judgment ought to be reversed are, that the complaint is insufficient; that the trial court erred in the giving and refusal of instructions; and that the verdict and judgment are not sustained by sufficient evidence.
Upon the view we feel constrained to take of the case, it will not be necessary for us to examine the first two grounds thus urged.
The undisputed facts in the case, as shown by the evidence, are these: The Ohio and Mississippi Railway, and the Jeffersonville, Madison and Indianapolis Railway, cross at right angles in the city of Jeffersonville. Parallel with the Ohio and Mississippi Railway is Illinois avenue, a public street. That street at the time of the injury complained of, and at this time, so far as shown, was, and is, unworked, and untravelled by vehicles. The two railways are connected by a double tracked "Y." The tracks of the "Y" were so separated that persons might walk between them. They crossed Illinois avenue diagonally, and upon a grade of some three or four feet above the surface of the balance of the street. It had been customary for years for the Jeffersonville, Madison and Indianapolis Railway Company to bring freight cars over from Louisville on its main track, and throw them in upon the "Y" to be taken up by the Ohio and Mississippi Railway Company and removed to its main track and placed in its trains. That was done by means of a switch engine passing back and forth over the "Y." It had for a long time been customary for that engine to be upon the "Y" at different hours in the day, to there avoid and take out the freight cars thus thrown in by the Jeffersonville, Madison and Indianapolis Railway Company, and especially in the evenings.
Hill, the decedent, had lived on Illinois avenue for about thirteen years, just opposite the point where the "Y" tracks crossed the avenue, his house being not more than twenty-five or thirty feet from the railroad. He had knowledge of the custom of the railway company in the use of the switch engine upon the "Y" tracks in the removal of cars thrown in upon those tracks. When cars were thus being brought over by the Jeffersonville, Madison and Indianapolis Railway Company and thrown in upon the "Y" tracks, its passenger trains could not go out over the main track. On the evening of the injury to Hill, one of its passenger trains had pulled in upon the "Y" track farthest from his house, and was there awaiting the throwing in of the freight cars and the consequent clearing of the main track of obstructions. The train was composed of an engine, a baggage car and three coaches. It had so far passed over Illinois avenue that the rear end of the rear coach was about opposite to Hill's house. The steam escaping from the engine was making some noise. Some time after six o'clock, the switch engine had come upon the "Y" track nearest to Hill's house, and had stopped beyond the crossing of the avenue some little distance, and was also awaiting the throwing in of the freight cars. The rear end of the switch engine was towards the street crossing. Those in charge of the engine, and others, testified that it was lighted up by a head-light. Others testified that they did not see such a light upon the engine, either before or at the time of the collision with Hill. For the purposes of this decision, we may assume that this negative and positive testimony makes a conflict in the evidence, and that, because of that conflict, the evidence should be regarded as showing that the engine was without a head-light. Such were the positions of the train and switch engine when Hill reached his house in the evening, and when he left it immediately before his collision with the switch engine, on the first day of September. After having had his supper, he left the house and passed out through his gate on his way towards the "Y" tracks. It was then after night, but the switch engine could readily be seen from his house, and on his way to the "Y" tracks. Before reaching those tracks, the Jeffersonville, Madison and Indianapolis Railway Company threw a freight car in upon the "Y" track nearest to his house, and in order to avoid a collision with that moving car, the switch engine was started and moved across Illinois avenue. Just as it reached that avenue, Hill stepped upon the track, and came in collision with it, and received the injuries from which he died.
There is evidence tending very strongly to show that he was not struck by the engine, but by the Jeffersonville, Madison and Indianapolis freight car so thrown in upon the "Y," and which was following close upon the switch engine. But as there is a conflict in the evidence, and as it seems to be conceded that to justify a recovery by appellee it should be found that Hill was struck by the switch engine, we adopt that conclusion as an established fact in the case.
Those in charge of that engine, and others, testified positively that when it was started the whistle was sounded and the bell rung, and that at the time, and prior to being started, the escaping steam was making quite a noise. Others testified that they neither heard a bell nor whistle. Again, adopting the view of the evidence most favorable to the appellee, it may be assumed that the switch engine was started without sounding the whistle or ringing the bell.
As before stated, the switch engine, before and at the time it started, could readily be seen from Hill's house, and in passing over the short distance from the house to the tracks. His daughter, who...
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