Pennsylvania R. Co. v. Huss

• Court: Indiana Appellate Court
• Writing for the Court: BRIDWELL
• Citation: Pennsylvania R. Co. v. Huss, 96 Ind.App. 71, 180 N.E. 919 (Ind. App. 1932)
• Decision Date: 06 May 1932
• Docket Number: No. 13405.,13405.
• Parties: PENNSYLVANIA R. CO. v. HUSS.

96 Ind.App. 71

180 N.E. 919

PENNSYLVANIA R. CO.

v.HUSS.

No. 13405.

Appellate Court of Indiana, in Banc.

May 6, 1932.

Appeal from De Kalb Circuit Court; W. P. Endicott, Judge.

Action by Florence Huss, by Minnie Haskins, her next friend, against the Pennsylvania Railroad Company. From a judgment for plaintiff, defendant appeals.

Reversed, with instructions.

Parker, Crabill, Crumpacker & May, of South Bend, Charles M. Brown, of Auburn, and W. S. Carlisle, of South Bend, for appellant.

Harris & Harris, of Fort Wayne, and Atkinson & Husselman, of Auburn, for appellee.

BRIDWELL, C. J.

Appellee instituted this action against appellant to recover damages for personal injuries sustained by her in a collision between an automobile in which she was riding as a guest and a freight car standing on appellant's railroad, and across a public highway at La Otto, Noble county, Ind.

An amended complaint was filed by appellee, and an answer thereto in general denial formed the issue upon which the cause was submitted to the court and a jury for trial. Interrogatories were submitted to and answered by the jury. Verdict returned in favor of appellee for the sum of $22,500. Appellant filed its motion for judgment in its favor upon the interrogatories to the jury, and the answers thereto, notwithstanding the general verdict, which motion was overruled, and appellant excepted. Motion for a new trial was filed by appellant, which motion was overruled by the court, and exception taken by appellant. Judgment rendered on verdict from which judgment this appeal is prosecuted.

The errors relied upon for reversal are as follows: (1) Error in overruling appellant's motion for judgment in its favor on the interrogatories propounded to the jury and the answers thereto; (2) error in overruling appellant's motion for a new trial.

The particular causes stated in the motion for a new trial, upon which appellant predicates error, are: That the verdict of the jury is not sustained by sufficient evidence; that such verdict is contrary to law; that the court erred in giving to the jury each of certain instructions given and in refusing to give to the jury each of certain other instructions tendered by the appellant.

The amended complaint alleges negligence in three particulars as follows: (1) That appellant and its conductor carelessly and negligently permitted one of its cars carrying, or used for carrying, freight, to remain standing across a public highway, and failed and neglected to leave any space whatever across said public highway; (2) that appellant negligently and carelessly failed to place any signal of any kind or character whatsoever at said crossing; and (3) that appellant carelessly and negligently failed to station or place any one of its employees or other person or persons at said crossing to warn the travelers upon said highway of the obstruction of the same by said freight car.

The sufficiency of the evidence to sustain the verdict is questioned. Many of the facts necessary to be considered are established by testimony that is not controverted. Facts proven and not in dispute are as follows: Appellant's railroad extends practically east and west through La Otto, an unincorporated town in Noble county, Ind., and is intersected there by a public highway, commonly known as the Lima road, which runs north and south from Kendallville to Ft. Wayne; approximately 400 feet east of this intersection, the tracks of the Grand Rapids & Indiana Railroad Company also intersect appellant's tracks at nearly a right angle; an interlocking device is maintained and used by appellant and the Grand Rapids & Indiana in the operation of their trains at this section, and it is necessary in the proper operation of said railroads that no cars be left within the interlocking plant; about 400 feet west of the Lima road another public highway intersects appellant's tracks; the Lima road is of concrete formation to a width of 18 feet; east of this highway, and adjacent thereto, is a garage located about 100 feet south from the center line of appellant's tracks; at a point 200 feet south of the railroad track the roadway of the Lima road is approximately 1 1/4 feet lower than the top of the rail of appellant's track, and 400 feet south 1 foot lower; south of said intersection there is no building on the west side of said highway for a distance of 300 or 400 feet. On the 21st day of October, 1927, at approximately 1 o'clock a. m., a freight train of appellant, consisting of an engine, caboose, and 29 freight cars, was running eastward, and 10 of the cars in said train were to be set off at La Otto; this train as it entered La Otto was, upon signal of the conductor, stopped with the 13th car from the engine standing across the Lima road; the conductor and head brakeman were riding on the caboose, and, when the train stopped, alighted therefrom for the purpose and with the intention to “cut” the train behind the sixteenth car from the engine in order to set the 10 cars off at La Otto, and (according to the jury's answer to interrogatory 33 submitted) acted with “reasonable promptness in leaving the caboose and going to the place where the train was to be cut;” before the train was separated and the crossing cleared, an automobile in which appellee was riding as a guest, and which was being driven by one Emma Menzel, approached over the Lima road from the south and collided with the freight car standing across said highway, and appellee received serious injuries; the freight car was a gondola car and about 8 feet high from the rail; the automobile was a two-seated Chrysler sedan owned by one Dr. Kreigh. On the evening of October 20th the doctor made a trip to Ft. Wayne, and appellee and Miss Menzel, at his invitation, accompanied him, leaving Kendallville about 8 o'clock, and driving south over the Lima road through La Otto to a dance hall about 3 miles from Ft. Wayne, where the two young ladies stopped, and Dr. Kreigh proceeded to Ft. Wayne, thereafter returning to the hall about midnight, when appellee and Miss Menzel again became passengers in the automobile, and the three then went to a restaurant in Ft. Wayne for something to eat and afterwards started back to Kendallville, the doctor driving the car for 3 or 4 miles, and then, at his request, he exchanged places with Miss Menzel, who thereafter did the driving until the collision occurred; all three rode in the front seat, appellee sitting to the right, the doctor between the two ladies.

Appellee's testimony is that the automobile was equipped with bright lights which were turned on all the time, and that after Miss Menzel began driving she noticed the speedometer at times and the speed was approximately 35 miles an hour; that, before reaching La Otto on the return journey, they passed some automobiles going in the same direction they were traveling and met others; that as they entered La Otto the speed slackened a little; that she was looking ahead and saw nothing in the roadway; that all at once she saw something just vague ahead, and just then Dr. Kreigh cried, “Look out,” and grabbed the emergency brake, and Miss Menzel pressed her feet on the brakes, and that was all she saw and the last she remembers as to what occurred; the automobile struck the freight car, and following the collision the front end of the frame and the bumper of said automobile were under the freight car, and the radiator and hood were pushed back, both ends of the hood going through the windshield; at the time of the collision no signal light of any kind was maintained at the crossing, and there were no gates or watchman; the Lima road was a much-traveled highway, and appellant knew of this fact. Just before the collision the conductor in charge of the freight train and the head brakeman had reached the sixteenth car west from the engine, and the conductor was in the act of pulling the pin to cut the train when he noticed the automobile in which appellee was riding approaching from the south and some three or four hundred feet distant from the crossing, and both he and the brakeman started toward the crossing waving their lanterns and trying to attract the attention of the driver of the automobile, but appellee did not see them; no employee of appellant was stationed at the crossing to warn travelers that same was obstructed.

There is evidence that the night was cloudy; that it was a dark night, cool and damp; that at the scene of the accident there was a fog or mist; and that the visibility was poor. The evidence as to atmospheric conditions and the speed of the automobile as it approached the crossing is conflicting, but a careful examination of the record discloses no conflict as to the other material and controlling facts proven.

From the allegations of the amended complaint it is evident that one of the acts of negligence charged and relied upon by appellee is the alleged violation by appellant of section 2903, Burns' R. S. 1926, which provides as follows: “Whoever, being a conductor or other person having charge of, or running a railroad train, carrying, or used for carrying, freight, permits or suffers the same, or any car or locomotive engine composing the same, to remain standing across any public highway, street, alley or farm crossing, or who, whenever it becomes necessary to stop such train across any public highway, street, alley or farm crossing fails or neglects to leave a space of sixty feet across such public highway, street, alley or farm crossing, shall be fined not more than twenty dollars nor less than three dollars.”

[1] The purpose of this statute is to prevent delay to traffic using our avenues of travel at points where railroads intersect such avenues, and to keep open such ways of communication in order that any person, or persons, desiring to use the same may do so without unreasonable interference. It was not enacted in order to protect persons from damage to either person or property...