Pennsylvania R. Co. v. Rizzo

• Citation: 86 N.E.2d 91,119 Ind.App. 505
• Decision Date: 24 May 1949
• Docket Number: 17827.
• Parties: PENNSYLVANIA R. CO. v. RIZZO.
• Court: Court of Appeals of Indiana

86 N.E.2d 91

119 Ind.App. 505

PENNSYLVANIA R. CO. v. RIZZO.

No. 17827.

Appellate Court of Indiana, in Banc.

May 24, 1949

George W. Henley, Bloomington, John M. Miller George Forrey, III, Edward B. Raub, Jr., Jacob S. White, Carl T. Reis, Indianapolis, for appellant.

Othniel Hitch, Indianapolis, Robert G. Miller, Bloomington, Samuel E Garrison, Indianapolis, of counsel, for appellee.

MARTIN Judge.

The appellee's decedent was killed when the automobile in which he was riding was struck by appellant's train at a grade crossing known as the German Church Road about three miles east of the city limits of Indianapolis, Indiana.

This is an action for damages alleged to have been caused by the negligent conduct of appellant in the operation of its train. There was judgment for the appellee.

The error assigned here is the overruling of appellant's motion for a new trial. Specifications of the motion question the sufficiency of the evidence, the legality of the verdict the giving and refusing to give of certain instructions.

We are called upon to say whether the evidence as disclosed by the record is sufficient to sustain the verdict of the jury and the ruling of the lower court on the motion for a new trial. In that consideration, we are not concerned with the conflicting evidence or with the weight thereof, but only in determining whether there is an entire absence of proof of any of the facts necessary to be established.

The evidence disclosed that on the 24th day of October, 1945, about 7:30 a. m., the decedent was riding in an automobile driven by one Donald Hurst, who was employed by the deceased to assist him in the roofing business, and that they were on their way to do some roofing work at the time of the accident.

The automobile was going south on the German Church Road and was moving at a low rate of speed, 10 to 20 miles an hour. As the automobile approached the railroad crossing, it apparently slowed down but never stopped and was struck by the train of the appellant which was going east on the south set of tracks of the appellant's double track railroad. The train was moving 70 miles per hour. The weather was clear and dry except for some overcast sky. The physical facts regarding the view to the west as one rode south on the German Church Road are shown by photographs, appellant's Exhibit A, B, C, and D, and by witness A. O. Rucker who was the only witness who made measurements and whose testimony is uncontradicted.

The measurements and the photographs were taken the day of the accident. The witness testified that when he was 573 feet north of the north rail of the eastbound track he could see the railroad track for a distance of 1,950 feet west of the crossing. This view remained the same as he proceeded south until he was 45 feet north of said north rail. For a distance of 18 feet from said 45-foot point to a point 27 feet north of said north rail, the wheels of a train going east on the south set of tracks were obscured by a slight rise of terrain when the railroad cars were in the space between 105 feet west of the crossing and 793 feet west of the crossing, but while in that space of 18 feet all of the railroad cars except the wheels could be seen. Going south from the point 27 feet north of said north rail, the view to the west was unobscured for 2 or 2 1/2 miles. There were no trees, buildings, or shrubbery that would obstruct the view along the west side of the German Church Road or in the field west of the German Church Road or north of the railroad track or along the north edge of the railroad track bordering the field. There were telephone poles along the railroad right-of-way on the north side of the tracks and a woven wire farm field fence and post fencing in the field to the west of the German Church Road and north of the railroad right-of-way, however, these did not obstruct the view of a train approaching. The German Church Road was running in a straight north and south direction at said grade crossing and the railroad tracks were straight running east and west and the terrain was generally level except the railroad tracks would dip to some extent a quarter of a mile west of the crossing.

The first and second allegations of negligence made by the appellee were as follows: 'By then and there driving and operating its said train when and while approaching said public highway without giving any warning sign by whistle or otherwise, when said defendant was a distance of not more than one hundred rods and not less than eighty rods from said crossing of said track and said public highway; by then and there driving and operating its said passenger train negligently toward, upon, and across said public highway at a reckless and dangerous speed, to-wit, eighty or more miles per hour and behind schedule.'

The failure to give statutory signals, as alleged in the first assignment, is negligence per se.

In the second assignment of negligence the appellee relied upon excessive speed. The evidence relative to the giving of statutory signals was given by the engineer, who testified that he gave the regular statutory blast of the whistle and had turned on the automatic bell on leaving Indianapolis. He was corroborated by the fireman who said that the whistle blew and the fireman stated that he was riding inside the cab and in open country where this accident occurred, you could not hear the bell ring while in the cab, and further testified that he did not hear the bell. There was one other witness who testified, one Tom Robling, a boy who lived in a house near the crossing and he gave the following evidence.

'Q. Did you hear any whistle prior to the thud? A. Well, the thud was the first thing I remember hearing.

'Q. Did you hear any whistle immediately prior to the collision? A. I don't remember, no.'

Cross Examination

'Q. And you wouldn't say now whether at the time of this accident the train whistle blew or you wouldn't say it didn't blow would you? A. That's right.'

In considering the question presented we may not weigh the testimony of one witness against the conflicting testimony of another, nor may we weigh conflicting portions of the testimony of the same witness. If the same witness makes contradictory assertions, we will not undertake to determine which of the assertions are true,...