Pennsylvania R. Co. v. Mink

• Decision Date: 03 January 1966
• Docket Number: No. 20051,No. 1,20051,1
• Citation: 212 N.E.2d 784,138 Ind.App. 311
• Parties: The PENNSYLVANIA RAILROAD COMPANY and George C. Bowen, Appellants, v. Robert MINK, Appellee
• Court: Indiana Appellate Court

Page 784

212 N.E.2d 784

138 Ind.App. 311

The PENNSYLVANIA RAILROAD COMPANY and George C. Bowen, Appellants, v. Robert MINK, Appellee.

No. 20051.

Appellate Court of Indiana, Division No. 1.

Jan. 3, 1966.

Rehearing Denied Feb. 16, 1966.

[138 INDAPP 313]

Hugh R. Couch, Martinsville, Edward B. Raub, Jr., George C. Forrey, III, William A. Wick, Indianapolis, for appellants.

Howard J. De Trude, Jr., A. L. Payne, Indianapolis, Armstrong, Gause, Hudson & Kightlinger, Indianapolis, of counsel, for appellee.

FAULCONER, Judge.

Appellee, while driving a 1953 Pontiac automobile west on Hill Camp Road in Johnson County, Indiana, collided with a train operated by appellant, George C. [138 INDAPP 314] Bowen, and owned by appellant, The Pennsylvania Railroad Company, (hereinafter referred to as appellant-railroad), traveling south on its tracks where they intersect said road. Trial was by jury which returned a verdict for appellee, and judgment was duly entered thereon. Appellants' motion for a new trial was overruled and such action is assigned as error here.

Appellants contended at the close of the evidence in the trial court, and here contend, that the evidence shows that appellee was contributorily negligent as a matter of law and that the trial court should have so held and granted their peremptory instruction for a directed verdict in their favor, and that the refusal of the trial court to so do was reversible error.

In Slinkard v. Babb, Wilson (1954), 125 Ind.App. 76, at page 80, 105 N.E.2d 342, 112 N.E.2d 876, at page 878, 117 N.E.2d 564 (Transfer denied), this court said:

'It is well settled that the trial court may, and it is its duty upon proper request, to direct a verdict for the defendant in cases where the evidence most favorable to the plaintiff, together with all reasonable inferences which a jury might draw therefrom, is insufficient to establish one or more facts essential to the plaintiff's right of action. Patterson v. Southern R. Co. of Ind., 1912, 52 Ind.App. 618, 99 N.E. 491; Cleveland, C., C. & St. L. R. Co. v. Haas, 1905, 35 Ind.App. 626, 74 N.E. 1003; Tabor v. Continental Baking Co., 1941, 110 Ind.App. 633, 38 N.E.2d 257.

'The foregoing rule only applies where it clearly appears that the evidence fails to establish one or more of the facts essential to a recovery, and where the facts and the reasonable inferences which may be drawn therefrom are not disputed and where the only possible inference to be drawn therefrom in favorable to the party asking the instruction.' (Citing authorities.) See also: Phares v. Carr (1952), 122 Ind.App. 597, 599-600, 106 N.E.2d 242.

The evidence most favorable to appellee discloses that at about ten o'clock a. m., on the morning of the collision appellee [138 INDAPP 315] drove his automobile east on Hill Camp Road to Shelbyville to obtain a part for a friend's car. In going to Shelbyville appellee crossed appellant-railroad's tracks and noticed boxcars parked north of the crossing on one of the tracks. The boxcars were parked on a 'stack track' immediately west of the main track and had been observed by appellee on several occasions prior to the collision. As appellee was returning from Shelbyville he was traveling west on Hill Camp Road between eleven o'clock a. m. and twelve noon, at approximately 30 miles per hour. As appellee reached a rise in the road east of the crossing he looked to the north and saw the same boxcars parked that he had seen earlier, but did not see the train of appellant-railroad traveling south on the main line. Appellee testified that when he arrived at the tracks there was a stop sign and that he stopped. He testified further that after stopping immediately east of the tracks he looked to the north and south, then straight ahead; that he did not see a train, nor did he hear a train or train whistle, or train signals; and that he started across the tracks and was struck by a train of appellant-railroad. The evidence further discloses that the train of appellant-railroad consisted of 13 cars being pulled south by a diesel engine which engine was going back wards, the rear of the engine being towards the crossing.

'The general rule is that the question of contributory negligence is one of fact for the jury when the evidence on the point is in dispute, or is conflicting, or is so that different minds may reasonably draw different conclusions or inferences on the issue of contributory negligence. Larkins v. Kohlmeyer (1951), 229 Ind. 391, 98 N.E.2d 896; Baltimore & Ohio R. Co. v. Daugherty (1953), 123 Ind.App. 373, 111 N.E.2d 483.' Leppert Bus Lines, Inc. v. Rayborn (1962), 133 Ind.App. 325, 331, 182 N.E.2d 260, 263; New York Central Railroad Co. v. Glad (1962), 242 Ind. 450, 453, 179 N.E.2d 571; Pittsburgh, Cincinnati and St. Louis Railroad Company v. Spencer et al. (1884), 98 Ind. 186, 190.

The law is well settled that it is only in cases where the [138 INDAPP 316] facts are without conflict and but a single inference can be drawn therefrom that this court can say, as a matter of law, that a course of conduct shown constitutes contributory negligence. New York Central Ry. Co. v. Milhiser (1952), 231 Ind. 180, 190, 106 N.E.2d 453, 108 N.E.2d 57; Baltimore & Ohio R. Co. v. Reyher, Admx. (1940), 216 Ind. 545, 552, 24 N.E.2d 284; 2 Ind.Law Encyc., Appeals, Sec. 574, p. 495.

In New York Central Ry. Co. v. Milhiser, supra, at page 189 of 231 Ind., page 458 of 106 N.E.2d, our Supreme Court said:

'It has been held many times that all reasonable presumptions are indulged on appeal in favor of the rulings and judgments of a trial court, that the record must exhibit the errors for which the reversal is sought, and that a court of appeals will not presume anything in favor of appellant to sustain his alleged error.' (Citing authorities.)

It is the duty of the appellant to so prepare his brief that a printed copy of the record for each judge will be unnecessary for him to be properly advised on each matter involved in the appeal. Board of Med. Regist. and Exam., etc. v. Bowman (1958), 238 Ind. 532, 533, 150 N.E.2d 883; Israel v. Logansport Aerie No. 323, F. O. E. (1964), Ind.App., 199 N.E.2d 730, 731. 'It is a well-settled rule that the Appellate Court will not search the record to seek sufficient evidence to support a reversal for the appellant.' Farm and Home Ins. Co. v. Konradi (1964), Ind.App., 199 N.E.2d 726, 729.

It is the duty of a person knowingly approaching a railroad crossing to exercise care for his own safety. The degree of care is ordinary and reasonable care according to the circumstances surrounding each case. Central Indiana R. Co. v. Wishard (1917), 186 Ind. 262, 268, 114 N.E. 970; The Chicago and Eastern Illinois R. R. Co. v. Hedges, Administratrix (1886), 105 Ind. 398, 406, 7 N.E. 801; [138 INDAPP 317] Baltimore & Ohio R. Co. v. Daugherty (1953), 123 Ind.App. 373, 378, 111 N.E.2d 483; 44 Am.Jur., Railroads, Sec. 529, p. 774. He is not, however, bound to exercise such a high degree of care as practically to insure his own safety. Pittsburgh, etc. R. Co. v. Terrell (1912), 177 Ind. 447, 455, 95 N.E. 1109, 42 L.R.A.,N.S., 367; Miller v. Pennsylvania Railroad Company (7th Cir., 1956), 233 F.2d 535, 538.

Railroad companies owe to the traveling public the duty of exercising reasonable care in the operation of their trains to avoid injury to persons at places where the tracks and the highway cross. New York Central R. R. Co. v. Casey (1938), 214 Ind. 464, 469, 14 N.E.2d 714; Pittsburgh, etc., R. Co. v. Pence (1916), 185 Ind. 495, 501, 113 N.E. 7; 44 Am.Jur., Railroads, Sec. 493, p. 731.

What constitutes ordinary and reasonable care on the part of a railroad company is to be determined in the light of all of the surrounding facts and circumstances. Miller v. Pennsylvania Railroad Company, supra (7th Cir., 1956), 233 F.2d 535, 537.

Appellants first argue that the undisputed evidence shows that the view which appellee had when approaching the crossing from the east was clear and unobstructed, and that the collision could not have occurred if appellee had exercised due care in watching for oncoming trains.

Appellee's evidence shows that when he approached the rise east of the track, the closest one to the track, he had occasion to look to the north along the railroad track and saw the same boxcars which he had seen earlier; and that he did not see any train, and did not hear any train.

A witness watching out of the west window of a house on the south side of the road about 200 yards east of the tracks testified that he watched appellee's car from where it passed said house all the way to the crossing; that he saw [138 INDAPP 318] the collision; that he was looking generally west and north; that he could 'see as far as where there were some freight cars banked', and that he saw the train 'when it hit the car.'

Another witness testified that there was the normal accumulation of growth at the fence line on the north side of the road near the crossing; and also to a raised portion of land east of the railroad and north of the blacktop road, and that the peak of such raised portion of land is six or seven hundred feet north of the blacktop road.

There were a number of photographs introduced into evidence in the trial court in this cause of the automobile, the engine, the crossing and the general surroundings. None of such photographs are in appellants' brief but they have been referred to therein. However, this is limited to such matters as where the photographer was standing and in which direction the picture was taken, and generally what they depicted. Although many witnesses testified regarding the surroundings generally, there is a surprising lack of any testimony concerning the specific view one would have north of this road from the points at and east of the tracks. The only clear evidence concerns the boxcars on the side track immediately west of the main line to the effect that the south end car was 320 feet north...