Pennsylvania R. Co. v. Winamac Cement Products Co.
| Decision Date | 13 January 1927 |
| Docket Number | No. 12561.,12561. |
| Parties | PENNSYLVANIA R. CO. v. WINAMAC CEMENT PRODUCTS CO. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from Starke Circuit Court; W. C. Penticost, Judge.
Action by the Winamac Cement Products Company against the Pennsylvania Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.
G. E. Ross, of Logansport, for appellant.
Harry W. McDowell and Reidelbach Bros. & Spangler, all of Winamac, for appellee.
Action to recover the value of an automobile truck destroyed by a backing engine at a public highway crossing in the town of Winamac, Ind.
The complaint charges that the said engine was negligently backed across said highway crossing without sounding any whistle, ringing any bell, or showing or displaying any light on the rear of the tender, the end of said locomotive engine and tender first approaching, and without giving any signal, and without any warning of the approach of said locomotive engine and tender, and that appellant caused said locomotive engine and tender to collide with, and strike, appellee's automobile truck with great force and violence, to overturn it, and forcibly to push, shove, and drag it, after said collision, a distance of about 80 feet, whereby it was demolished and destroyed; and that, at the time appellee's employees approached the crossing and drove said truck upon the tracks, its front and rear lights were lighted, casting its rays of light over and across the tracks of appellant's railroad, and said truck and the lights thereon were visible and apparent, and might or could have been seen by appellant's employees, by the exercise of ordinary care and diligence, in time to have sounded an alarm and to have stopped said locomotive engine and tender, and to have prevented said collision, but notwithstanding such fact appellant, by its employees, without giving or displaying any signal whatever, ran and operated said engine and tender, without stopping or attempting to stop the same, against said truck with great force and violence as aforesaid, demolishing and destroying it. After appellant's motion to make more specific and its demurrer to the complaint were each overruled, the cause was submitted to the court for trial on an agreed statement of facts substantially as follows:
Appellant, on April 16, 1923, and for many years prior thereto, operated and maintained in the town of Winamac a railroad with two main tracks and a siding running from the northwesterly to the southeasterly at right angles over a public street, which is known as Washington street. On said date, and at the time of the collision hereinafter described, the view of a traveler approaching appellant's railroad and track from the west on said Washington street was obstructed by buildings along and on the right of way so that a full view of said tracks to the northwest could not be had until reaching a point about 20 feet west from the west rails of the west main track, and that immediately east of the right of way, northerly from Washington street, adjoining and parallel to the tracks and siding, there is a steel-covered elevator and sheds, blackened by coal dust, dirt, and grime, which form a dark background for any unlighted locomotive or car standing or moving on said tracks by said elevator and sheds, and after dark an unlighted train, car, or engine would not, and could not, be distinguished by travelers on Washington street coming from the southwest until reaching the east main track. On said date appellee was the owner of one Avery one-ton truck, of the value of $1,500, and, after dark, and between the hours of 7 and 8 p. m., John Kruzick, an officer and employee of appellee, accompanied by another employee, was driving said truck on the west side of said railroad in a northeasterly direction on said Washington street, and, while so driving it at a point 20 feet from the west main track of said railroad, he brought it to a standstill, and both he and the other employee looked in both directions along the track for approaching trains, and listened for the sound of a whistle and bell and noise of...
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