Peirce v. Jones
| Decision Date | 05 April 1899 |
| Docket Number | 2,728 |
| Citation | 53 N.E. 431,22 Ind.App. 163 |
| Parties | PEIRCE, RECEIVER, v. JONES |
| Court | Indiana Appellate Court |
From the Tipton Circuit Court.
Affirmed.
C. A Schmettau, A. B. Clark and Clarence Brown, for appellant.
B. F Harness and Gifford & Coleman, for appellee.
The appellee, Anna E. Jones, brought her action against the appellant as receiver of the Toledo, St. Louis and Kansas City Railroad Company, for damages for a personal injury suffered in passing over the track of the railroad at a street crossing in the city of Kokomo, through the negligence of the servants of the defendant. There was a general verdict for the appellee, her damages being assessed at $ 1,000.
It is urged on behalf of the appellant that the evidence failed to show sufficiently that the appellee was free from contributory negligence. The casualty occurred between 10 and 11 o'clock in the forenoon, on the 11th of July, 1895 the weather being clear. The course of the railroad was east and west, and a freight train approached from the east. The appellee was riding in a two-seated carriage southward on Smith street, which crossed the railroad at right angles. The carriage was drawn by one horse, driven by the appellee's husband, who was seated on the right side of the front seat. The appellee was seated on the left side of the same seat, with a child seated between her and her husband. The other seat was occupied by two other ladies and another child. The carriage was one of a number in a funeral procession, the hearse containing the corpse being at the front of the procession, and the carriage in which the appellee was seated being the second carriage from the hearse. On the east side of Smith street and near it, and also near the railroad track, were some obstructions consisting of a small house and a shed for stone cutting and certain stock pens, with some chutes for loading animals, and also a number of box freight cars from twelve to fourteen feet high on two side-tracks on the north side of the main track on which the train in question approached. The center of the main track was thirteen feet south from the center of the first side-track, which extended across Smith street, and the center of the main track was thirty-seven feet south from the center of the second side-track, at the east side of Smith street, to which it extended, but it did not cross the street. There was a depot on the north side of the main track about 540 feet east of Smith street. One of these side-tracks branched off from the other, and there were a number of box cars on each of the side-tracks. These cars extended from the sidewalk on the east side of Smith street about 400 feet eastward toward the depot. From the north side of the building for stone cutting, which was about seventy-nine feet north of the center of the main track, the view was obstructed by structures and cars. There was a space of about 100 feet where a traveler passing southward on Smith street toward the crossing could look through and see the main track of the railroad from the west side of the depot to the box cars on the side-tracks. When he reached a point about 100 feet from the main track, he would lose sight of the clear space west of the depot. There was evidence tending to show that he could not see the track east of the depot before arriving at the crossing. The appellee had been living in the city of Kokomo for about sixteen years. For a number of years the railroad company had kept a flagman at this crossing, and a flagman, a servant of the appellant, who had served in that capacity for a year or two at this place, was stationed there at the time of the occurrence in question. Before the train approached and crossed the street, no whistle or alarm was sounded until the engine was very near, or "right at," the crossing, when the whistle was sounded, the evidence being conflicting as to the number of blasts. As the procession approached the crossing, the funeral director descended from the hearse, about fifty or sixty feet from the railroad, and walked forward ahead of the hearse toward the crossing, the hearse following. The horses drawing the vehicles went forward at a walk. The funeral director saw the flagman, whom he knew, at the crossing. The flagman beckoned for the procession to move forward. He said the freight train would stop for water. The place for water was on the south side of the railroad, east of the depot and at Washington street, which was two squares east of Smith street. The flagman had a light flag, which he dropped, and he took up a red one. The hearse passed on across the track. The funeral director saw the train approaching as he passed over the track. He first saw it when he got upon the track, the hearse being back of him and about fifteen feet from the track. The train was then between the water tank and a railroad crossing east of Washington street. The engineer on this train testified that he saw some teams crossing at Smith street from the time he left the depot at Washington street. The funeral director had gone about 120 feet from the railroad track when the engine reached the crossing of Smith street. The second vehicle of the procession followed close upon the hearse, and also passed over, and the vehicle in which appellee was seated followed, the distance between the horse drawing it and the vehicle in front of it being about five feet, according to some part of the testimony, and from ten to twelve feet according to other testimony, the horse approaching the crossing in a walk. The funeral director saw the flagman make signals to those behind in the procession. When the vehicle in which the appellee was riding had reached the point about 200 feet from the crossing, where the main track for a space west of the depot could be seen, there being here nothing to obstruct the view so as to prevent one from seeing a train if it were passing directly west of the depot, the appellee's husband looked toward the railroad, but did not "see or hear anything." He looked across at the railroad all the way down from this point. When he first discovered the train coming, the horse was on the main track and the train was very near, about twenty feet off. He could not turn back because of the carriages following. The whistling of the engine and the escaping steam frightened the horse. He struck the horse with the whip, and the horse shied and lunged to the right and carried the carriage over, so that the engine passed immediately behind it, barely missing it. By the sudden movement, the appellee was thrown over the side of the carriage upon the lamp, and against an upright iron bar of the carriage, and thus received the injury for which the action was brought. The appellee's husband saw the flagman at the crossing. He was standing on the main track at the east side of the crossing. He motioned down the cars, and then motioned for appellee's carriage to go on southward across the track. The box cars, which were on the side-tracks, extended to a point about twelve feet from the portion of the street over which the procession was passing. The flagman was first seen by the appellee's husband as he drove down a descent of about two feet from the grade of the street to that of the railroad, and when the appellee's carriage was about twenty feet from the main track, or about even with the more northern switch. The appellee's husband could not see up the track for a space of some seventy-five to 100 feet before reaching the crossing, and as soon as he reached a point where he could look up the track he did so. The appellee, as she approached the crossing, looked for a train, but did not see any. She watched all along as they went down the road. She first saw a train when she was on, or nearly on, the track. She paid attention after she got down behind the box cars. This was about 100 feet from the railroad track. She first saw the flagman when she got down to the crossing. He was "up a little way," so that the box cars hid him until she got down to the track, and he kept motioning for her carriage to go on over south. She saw him doing so. He stood there on the tracks between the appellee's carriage and the train, until he had to jump off out of the way of the train. The vehicle next behind that in which the appellee rode was so near the main track when the train passed, that the driver turned the horse's head to a fence to avoid the train. An occupant of this carriage saw the flagman when this vehicle got down to the track, and before she saw the train. He was making motions with his flag to the occupants of this carriage to go on ahead. When the persons in this carriage first saw the train, the front part of appellee's carriage was on the track. The flagman was flagging the train to stop, and also motioning for the procession to go on.
There was much evidence tending to show that in passing over a railroad crossing about 2,100 feet east of Smith street, the train had slowed up (as the engineer stated, to the rate of between five and six miles an hour) to let one of the employes get off the train and adjust a target and get back on the train. The evidence showed that there was a down grade toward the Smith street crossing from a point some distance eastward. The train did not stop before passing Smith street. The evidence as to the rate of speed of the train at the Smith street crossing varied greatly, some evidence indicating a speed of fifteen to twenty miles an hour. It is contended that the evidence did not show that the appellee listened for a train as she approached the crossing, and a large number of cases are cited, and many quotations therefrom are set out, in appellant's brief, for the purpose of illustrating the rule of law relating to looking...
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