Peirce v. Ray
| Decision Date | 13 March 1900 |
| Docket Number | 2,905 |
| Citation | 56 N.E. 776,24 Ind.App. 302 |
| Parties | PEIRCE, RECEIVER, v. RAY |
| Court | Indiana Appellate Court |
From the Howard Circuit Court.
Affirmed.
C. G Guenther and A. B. Clark, for appellant.
J. C Blacklidge, C. C. Shirley and Conrad Wolf, for appellee.
OPINION
The appellee brought his action against the appellant as receiver of the Toledo, St. Louis and Kansas City Railroad Company, to recover damages for the killing of appellee's two horses, and the destruction of their harness, and injury to his wagon, and for personal injury to the appellee, caused by the collision, through appellant's negligence, of a locomotive engine with appellee's team and wagon at a public crossing on appellant's railway in the town of Greentown, in Howard county. A demurrer to the complaint for want of sufficient facts was overruled. There was an answer in denial, and upon trial by jury a verdict in favor of the appellee for $ 1,200 was returned. By way of objection in argument against the complaint, it is claimed that, notwithstanding its general averment of the appellee's freedom from fault, it affirmatively appears from the facts particularly stated that the appellee was chargeable with contributory negligence. It appears from the complaint that the street on which the appellee was driving (Meridian street) runs north and south across the railway, which crosses the street from east to west, "bearing, however, slightly to the south"; that "from a point about one-half mile east of said street the track of defendants railroad curves slightly to the south, and on the east side of said street there are a number of houses, trees, and other obstructions to the view eastward along said track, extending to within twenty-one feet of the south rail of said railroad, back to the distance of several hundred feet, rendering the running of defendant's trains at a high rate of speed at that point particularly hazardous, and especially so in the absence of suitable signals announcing the approach of such trains to said crossing; that on," etc., the plaintiff was driving along Meridian street from south to north, with a team of horses attached to an ordinary road wagon, and when his said team was upon said railroad track they were struck by one of the defendant's locomotives in charge of his agents and employes, and so operated by him, attached to a freight train approaching from the east, and running at a great and unreasonable speed, to wit, at the rate of fifty miles an hour, thereby killing both of plaintiff's horses, injuring said wagon and the harness worn by said horses, tearing them from said wagon, and seriously injuring plaintiff's hands and arms, by causing the lines in plaintiff's hands to be violently jerked, etc. It was further alleged that the collision and the injuries resulting therefrom were caused wholly from negligence and carelessness of the appellant and his agents and employes in charge of and operating said train, in failing to sound the whistle of said engine or to ring the bell thereon, or to give any other signal whatever of the approach to the crossing, and so negligently running said locomotive and train at said high and unusual rate of speed across said street, etc.; that the appellee was himself wholly without fault, and that he looked and listened for the approach of trains from either direction as he neared said crossing, from a long distance south of the same, until his horses' feet were on the railroad track, and it was impossible to avoid said collision and the injuries resulting therefrom; that he also caused his team to stop just before entering said track, for the purpose of looking and listening for approaching trains, and that he did so look and listen at that point, but that none was visible or within hearing; that the person in charge of said locomotive negligently and carelessly failed to sound the engine whistle at a distance of not more than 100 and not less than eighty rods from such crossing, to signal the approach thereto, and negligently failed to ring the bell thereon or to cause it to be rung, or to give any notice whatever to persons about to use the street crossing that said locomotive and train were approaching, etc.
It is contended, in effect, that these averments show that, after the appellee had passed to a point twenty-one feet from the railroad track, he could have seen a train approaching from the eastward for a distance of nearly half a mile, and that the physical facts alleged inevitably lead to the conclusion that he did not look or listen for a train when he passed to the track from the point twenty-one feet south of it, or that he saw the train and disregarded what he saw. The claim that the complaint shows that the appellee could have seen along the track for a distance of nearly half a mile--on which this argument is based--is not well taken. While the averments as to the course of the railroad are not as definite and clear as might be desired, they are not susceptible of the meaning so attached to them by counsel, and we cannot find reason for upholding the claim that contributory negligence is not sufficiently negatived by the pleading.
In discussing the action of the court in overruling the motion for a new trial, it is contended that the evidence disclosed that the appellee was guilty of contributory negligence. There was evidence tending to prove, amongst other things, that the appellee resided a few miles north of Greentown, and for many years had lived at the same place, and had often crossed at the place where the collision occurred, and he knew it was a dangerous crossing. On the day of the injury in question he had been with his team and wagon at a grist-mill situated immediately adjoining the south side of the railroad, eastward from Meridian street. Soon after 6 o'clock in the evening he started for his home from the mill, and drove thence to Meridian street, at a point about 300 feet south of the railroad crossing; and there three other men, who wished to ride homeward with him, got upon the wagon, and he drove northward on Meridian street toward the crossing,--one of said three men, Watson Roe, sitting in front with the appellee and at his left side, the other two, Harrison Carter and Noah Loop, standing further back in the wagon. The street ran north and south, and the railroad crossed it at or near right angles, in the northern part of the town. The street was eighty feet wide, and sloped upward to the railroad track, which was about four feet higher than the street south of the slope. Along the east side of the street south of the crossing were obstructions (described in the evidence) which cut off the view toward the east. When appellee had driven to a point about fifteen or twenty steps south of the railway, as testified by the appellee, he stopped the team for the purpose of giving the two standing men an opportunity to make seats for themselves of some sacks, which they did, under appellee's direction. On the east side of the street was a building called a picture or photograph gallery, which extended northward to a point five steps from the crossties, or about fifteen, seventeen, eighteen, or twenty feet, as variously estimated by witnesses, from the railway track. While the seats were being prepared, appellee looked and listened, but did not see or hear a train. At this point and thence northward until the picture gallery was passed, the view eastward was obstructed so that a train could not be seen in that direction. After the seats were arranged, and the two men in the rear were seated, about three feet behind the appellee and said Roe, the appellee drove on toward the crossing in a slow walk. The weather was threatening rain, and a strong wind--"a pretty good gale"--was blowing from the west, and soon after the collision it did rain. There was evidence from which the jury might have found that no signals were given from the engine which caused the injury as it approached from the east, except the sounding of the whistle immediately before and almost simultaneously with the collision, though the evidence in this regard was conflicting. The train in question was a light freight train, which did not stop at this station, and, while the evidence as to its speed was quite conflicting, there was evidence that it was running at the rate of thirty-five or forty miles an hour.
The appellee testified: "I started up, and when I got my horses on the iron [on the road] I stooped forward this way [illustrating], to see past Watts Roe,--to see up past the depot," which was toward the west. Being asked how near the train was to him when the whistle blew, he answered: Being asked for what distance east the track could be seen, he testified, "You can't see it at all, unless you get past the photograph gallery." Q. A. "You would have to be clear past the photograph gallery." He also testified that when one had passed the photograph gallery the team of horses would be on the track,--near or very...
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