Pennsylvania R. Co. v. Sherron

• Decision Date: 25 April 1952
• Docket Number: No. 28882,28882
• Parties: PENNSYLVANIA R. CO. v. SHERRON.
• Court: Indiana Supreme Court

Page 334

105 N.E.2d 334

230 Ind. 610

PENNSYLVANIA R. CO. v. SHERRON.

No. 28882.

Supreme Court of Indiana.

April 25, 1952.

Sharpnack & Bigley, Columbus, Bulleitt & Orbison, New Albany, Frank Hamilton, Greensburg, for appellant.

Owen Voigt, Jeffersonville, Homer E. Hostettler, Henryville, Dan C. Flanagan, Ft. Wayne, for appellee.

DRAPER, Judge.

The appellee sued appellant and recovered damages for personal injuries suffered as the result of a collision between a truck he was driving and a railroad train operated by the appellant at the intersection of its tracks and a county highway in Clark County, Indiana.

One of the five separate acts of negligence alleged in appellee's complaint (specification 10b) is:

'That with knowledge of all the facts contained in the allegations of Rhetorical Paragraph 4 hereof, said defendant negligently and carelessly failed to provide suitable and adequate means to warn operators of motor vehicles from the northeast of the approach of trains to said crossing from the north;'

The allegations of rhetorical paragraph 4 referred to therein are somewhat lengthy. It alleges that the road and tracks intersect at an angle of 45 degrees; that as the operator of a vehicle approaches the tracks from the northeast his view of a train approaching from the north is obstructed by an embankment so that when he is ten feet from the crossing he can see only 400 feet to the north; that 1610 feet north of the crossing the tracks curve so that at the intersection a train approaching from the north cannot be seen until it reaches a point 1610 feet north of the intersection; that from the north said track runs on a down grade.

Appellant's motion to strike out the allegation of negligence above quoted was overruled, and that is the first error assigned.

Since the overruling of a motion to strike out usually has the effect only of leaving surplusage in the record, it has frequently been broadly stated that no reversible error can be predicated upon such a ruling. 2 Lowe's Revision Works Indiana Practice, § 23.30, p. 127. In Evansville, etc. Ry. Co. v. Woosley, 1950, 120 Ind.App. 570, 93 N.E.2d 355, it was said that where the only effect of overruling a motion to strike out parts of a complaint is to leave surplusage in the record which, when considered in the light of the allegations of the complaint and the instructions of the court does not prejudice the defendant, the overruling of such motion does not constitute reversible error even though such action be erroneous. In Lindley v. Sink, 1940, 218 Ind. 1, 30 N.E.2d 456, 2 A.L.R.2d 772, it is suggested that if an insufficient allegation of negligence were included among other allegations of negligence which are actionable, and the defendant unsuccessfully moved to strike from the complaint the insufficient allegation of negligence, a more serious question might be presented.

Here it is claimed that the overruling of the motion to strike should constitute reversible error because there was no other way to raise the question of the sufficiency of this particular allegation of negligence. We do not agree. We think a separate allegation of negligence can be singled out and a partial demurrer addressed thereto, the overruling of which would in a proper case constitute reversible error. See Gavit Indiana Pleading and Practice, Vol. I, § 133, p. 645. Such is presently the rule with respect to certain other classes of actions, 2 Lowe's Revision of Works Indiana Practice, § 14.6, and cases cited, and we know of no good reason why it should not apply in actions for damages based on negligence.

The court instructed the jury that in order for the plaintiff to recover it was not necessary for the plaintiff to prove all of the acts of negligence charged against the defendant in the complaint, but that it was only necessary for him to prove by a preponderance of the evidence one of the acts of negligence as charged against the defendant, and that said act of negligence on the part of the defendant was the proximate cause of plaintiff's injuries, if any. It therefore becomes necessary to determine whether an allegation to the effect that the railroad company negligently failed to provide suitable and adequate means to warn operators of motor vehicles of the approach of its trains to an extrahazardous and dangerous highway crossing, is actionable negligence. If not, the instruction was erroneous, for it is error to instruct the jury that the plaintiff may recover upon proof of an alleged act of negligence which is insufficient in law. Cleveland, etc. R. Co. v. Powers, 1909, 173 Ind. 105, 88 N.E. 1073, 89 N.E. 485; Lower Vein Coal Co. v. Moore, 1923, 80 Ind.App. 53, 137 N.E. 887.

Negligence cannot be predicated alone upon the failure of a railroad company to erect and maintain safeguards at a public highway crossing unless such are required by statute or by the public service commission or other duly constituted authority. Terre Haute, etc., Traction Co. v. Phillips, 1921, 191 Ind. 374, 132 N.E. 740; Pennsylvania R. Co. v. Rizzo, 1949, 119 Ind.App. 505, 86 N.E.2d 91, 87 N.E.2d 885; Cleveland C. C. & St. L. Ry. Co. v. Gillespie, 1933, 96 Ind.App. 535, 173 N.E. 708. However, the failure to furnish additional safeguards at intersections may nevertheless be considered in determining whether the defendant has been guilty of negligence if the issue is properly presented. It is the duty of a railroad company to operate its trains in the exercise of reasonable care. The absence of warning signals or devices, together with all other circumstances and conditions surrounding the crossing, may be considered by the fact finder in determining whether, under all the circumstances, the train was negligently operated if the question is presented by the issues joined.

In Terre Haute, etc., Traction Co. v. Phillips, supra, this court said [191 Ind. 374, 132 N.E. 744]:

'It will be observed that this instruction did not refer to the speed at which the car was run, or the manner in which it was operated, or the frequency with which travelers passed over the crossing, but authorized a finding of negligence on the part of the defendant company if there was no electric bell or watchman at the crossing and the surroundings afforded 'less than ordinary observation of an approaching car,' no matter how slowly the car was run nor what precautions were taken to give notice of its approach, by repeatedly blowing the whistle or otherwise, nor how infrequently the highway was used. This was error. The failure to provide a bell or watchman at a highway crossing in the country to warn travelers could only be actionable negligence if it violated some duty imposed by law on the railroad company. And no positive duty to install such warnings is imposed by the law of Indiana, except where an order to that effect has been made by the Public Service Commission or other proper authority.

'At common law the fact that there was no electric bell or watchman might be shown, as a circumstance attending the operation of the car, from which to determine, in connection with the amount of travel habitually passing over the crossing and all other circumstances, whether or not the operation of the car in the manner and at the speed that it was operated was negligent. But a duty to run a car with care in view of the fact that there are no special warnings at the crossing is not the same as the duty to provide and maintain a bell or watchman no matter how the car is run. There is no duty under the common law to place a bell, watchman, or other special warning at a highway crossing in the country.'

The appellee disposes of this proanouncement as obiter dictum because there was no evidence in the record that the crossing involved was not provided with a safety device and the instruction under consideration was repudiated, not for the reasons stated in the above 'quote,' but because it was inapplicable to the evidence. Dictum or not, two months later it was made doctrine by the decision in Lake Erie, etc., Railway Company v. Johnson, 1921, 191 Ind. 479, 133 N.E. 732, 733. There this court said:

'In...